*1 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW v. PITTS, DARRYL DEFENDANT-APPELLANT. Argued 21, March 1988 Decided June 1989. *5 (Mares- appellant argued the cause for Benjamin Goldstein Drinkwater, Birsner, attorneys). sa, Goldstein, Patterson & General, argued Deputy Attorney the cause Flanagan, Janet Edwards, (W. Attorney of New respondent Cary General General, Deputy Attorney Jersey, attorney; Belfatto, Olivia briefs). counsel; Belfatto, on Flanagan Janet Olivia opinion The of the Court was delivered STEIN, J. Pitts, by a
Defendant, Darryl tried and convicted Cam- was Stacey Reynolds and County jury of the murders of Paul den of several offenses based Elizardo. He was also convicted days prior to the murders. Defendant events that occurred two Elizardo; he Stacey murder of sentenced to death for the thirty-years parole imprisonment to life with was sentenced ap- Reynolds. Defendant ineligibility for the murder of Paul 2:2-l(a)(3). right. We directly as of R. peals to this Court offenses. for murder and the related affirm his convictions acknowledges that defendant’s death Attorney General instructions the trial court’s sentence must be reversed because mitigating balancing aggravating to the on the comply the standards established State factors did *6 13, (1987). Biegenwald, v. N.J. 53-67 We therefore set aside the death sentence and remand the matter to trial sentencing court new proceeding. for a
I. History Facts and Procedural against The twelve-count indictment returned the defendant charging relating included six counts offenses to the murders Reynolds 22, 1984, of Paul Stacey Elizardo on March Reynolds’ apartment. remaining counts, In the six defendant charged allegedly was with various crimes committed on March 20, 1984, Lindenwold, Jersey. at Elizardo’s townhouse New Accordingly, the factual background essential to an under- standing legal issues in this case commences with the during evening events that occurred of March 1984. produced fully supports evidence following at trial account of the material facts. 20, 1984, defendant,
On March unemployed War Vietnam veteran, inwas request, Elizardo’s townhouse. At her defen- watching dant was one of Elizardo’s two children while she and Reynolds Paul took her other to hospital. According child defendant, he and many They Elizardo had dated times. had sexually been intimate. acknowledged deep Defendant af- fection for Elizardo. evening the course of the two other male friends of Pencock,
Elizardo visited her townhouse. The first was Paul who had with lived Elizardo earlier that winter. He had come her, by to see and defendant him stay invited and await her return. expressed He testified that anger defendant because Elizardo was out late Reynolds.
Soon after arrival, Peneock’s Polla, Vincent Della another Elizardo, friend speak called to to Brian Gallo who shared the townhouse with her Pitts, represent- Elizardo and children. Gallo,
ing apartment. himself Della to be invited Polio to the He arrived soon afterwards.
The three feelings men discussed their toward Elizardo while awaiting very her return. Defendant stated that he loved her questioned depth much and the other two about the of their acknowledged affection for her. Pencock that he also loved her; and cared told about Della Polla defendant that he cared response her for but did not love her. Defendant’s to Della he here.” Polla “shouldn’t be passed increasingly As time became angry Reynolds Elizardo’s failure return home. Pitts blamed keeping *7 “get” her late and said that he Reynolds. out would Reynolds p.m., When Elizardo and returned about 11:00 Pitts “tramp” her called a and demanded to where had know she Reynolds been. intervened and invited defendant into liv- the concerns, defendant, room ing glaring to discuss his but at Reynolds, did not leave the kitchen. Elizardo, threatening
Defendant also made statements to commenting midnight.” “it’s closer getting to Elizardo interpreted told Della she Polla that defendant’s words to mean that she would die at o’clock. then twelve Elizardo demanded everyone Suddenly, apartment. leave the defendant grabbed against knife it Della kitchen and held Polla’s neck. throat, having accusing He threatened to slit his Della Polla of infected Elizardo with a venereal disease that she had subse- quently pushed transmitted to defendant. Della defen- Polla Pencock, away. apartment then left the with dant Defendant Reynolds had offered to drive him home. left at the same who time, leaving Elizardo with Della Polla. apart- Pitts
Pencock drove home and returned to Elizardo’s Polla, According telephoned to ment. Della Pitts Elizardo threatening prompted times and made remarks. This several refused, Della Polla to offer to take Elizardo his house. She stating “nobody going my to throw me out of own house.” thereafter, apartment
Shortly returned to the and Pencock, Elizardo, Della at kitchen and sat down the table with carrying pistol-type a rifle handle which Polla. Pitts was with going talk.” saying, Della “We are pointed he Polla leave, Polla to and Della Polla walked then told Della Pencock out, him as did Pitts Pencock. apartment. out of the followed trigger, he Pitts, gun finger his said holding the intervened, standing going Polla. Pencock to shoot Della Polla, got into and Della who then his car between Pitts and away. drove rifle, waving apartment and directed
Pitts returned to Elizardo, calling “tramp” and a anger at her a “whore.” defendant, attempted rifle it to take the from When Pencock picked up the ground discharged. Pencock fell to placed pocket, in his and hid weapon, clip, which he removed Subsequently, at rifle of a couch. under cushion insistence, rifle to him with- Pencock returned the clip. out the Pencock,
Defendant, apartment in the and Elizardo remained a.m., awakened her told her until Pencock about 5:00 when had Pencock that she would that he to leave. Elizardo assured left apartment with defendant. Defendant be safe morning. returned to apartment the next Pencock Elizardo’s 21, bring- in the of March apartment Elizardo’s late afternoon gun clip that defendant had asked Elizardo ing with him *8 overnight. stayed apartment for him. Pencock at retrieve 22, arrived, Reynolds he Thursday morning, Paul and On March together. apartment left the and Elizardo Gibbs, morning his That same Pitts asked James downstairs to to him a few errands. Defendant offered neighbor, drive on they return gasoline for and assured Gibbs would within pay apartment to the of Patri- forty-five They first drove minutes. Woods, wife, defendant’s former but defendant observed cia parking They proceeded lot. to a her car not in the was six-pack of Pitts purchased a beer. liquor store where Pitts drank of a they half bottle of to Reynolds’ beer drove Paul apartment. parked Gibbs the car and pro- waited while Pitts Reynolds’ apartment. ceeded apartment to Outside the door Pitts visiting Reynolds encountered Michael Sarich who was to Sarich, repay According debt. to woman’s shoes and coat plain living in Reynolds' departed, were view room. Sarich leaving Reynolds together apartment. and Pitts in the The two quickly engaged argument. Pitts, only became a heated encounter, ensuing survivor has offered several different accounts of events that followed.
In his police arrest, first statement to officers following his Reynolds defendant attributed the murders and Elizardo to waiting Reynolds’ apartment unidentified male who at purpose door when Pitts buying arrived some mari- juana. According Pitts, “freaked,” pulled the assailant out a knife, Reynolds. and stabbed then He stabbed Elizardo as she attempted to run apartment. from the Pitts said that hands attempted were smeared with blood he when to render first aid. He responsibility denied for either homicide. gave police
Defendant a second statement to the 2:10 a.m. on March approximately completed an hour after he his first statement, acknowledged statement. the second re- Pitts sponsibility Reynolds for both homicides. Pitts said that he and argued Reynolds about seven hundred dollars that owed him. me. At me owed that time seven hundred dollars and Paul’s They owed they * * holding holding bullshitting holding
been and and he's me been *. * * * get getting I tried to from When he started [the money] [Reynolds]. got that’s when I back. me, That’s fuck are shitty when —what shitty doing? I I told don’t fuck and he did. you says, mother, you with me, According defendant, pulled then Army he out a black Reynolds’ knife and “survival” cut throat: enough being He but it but was cut wasn’t severe can cut a human you According alive three That’s a minutes. known fact. usually they’ll stay gentlemen, going he was stabbed. All this on fast. This couldn’t have you room, than what ten, taken no more seconds. When came out of the [Stacey] doing, jerkoff, fucking the fuck and on and and on. I said because you my hand and on. know, is not it went That’s when attacked money my I, you * * * her. *9 against wall, fallen went into had And Stacey] hysterics. [After Reynolds ** I *. went that’s when fucked down, when up hysterics struggle grabbed guess originally her because I and I tried to I it started a cutting can use knife cut her I told combat you before, [the for] throat. you someone’s throat. attempted to cut Elizardo’s he twice Defendant indicated that throat, any body. stabbing part her but did not recall other victims, pulse” he and deter- He stated that “took the both mined that were dead. both police to the were read to the
Both of defendant’s statements during guilt phase of the trial. When defendant trial, explanation he offered in his repudiated testified at unpaid police argument to that an over an second statement provoked Pitts at trial that he had debt the homicides. testified buy He gone apartment marijuana. to to Elizar- Reynolds’ saw Reynolds to see do’s shoes and coat and asked her. said asleep, and that she not want to see she was indicated would Reynolds encour- Pitts. Pitts testified that he then accused engage money aging prostitution to in order to earn Elizardo According drugs Reynolds. pay purchased to that she from other, Pitts, each and argument erupted, the two shoved an refused, Reyn- he Reynolds demanded that Pitts leave. When going and that he was olds turned toward said bedroom gun. Reyn- get pulled a then out his knife and stabbed Pitts re- as an “instantaneous like olds. He described the assault “frenzied-type occupied Reynolds, flex.” and While mind,” perceived “image” Pitts an him. Accord- state behind ing testimony: trial Pitts’ just image at I was behind it was me, that now which know [W]hereas, Stacy knife time I sliced with the at the time that I wheeled around and Stacy * * * I I what had done and I came back to senses had realized [W]hen my laying laying outside the and Paul was inside
Stacy apartment her was in of blood and I lifted her and I up and Stacy puddle put apartment I I back ran downstairs back into the and then went downstairs apartment got I into James Gibbs’ car. jealous of her Pitts testified that he loved Elizardo and was also explained other men. He that his second relationships with *10 police, to the falsely statement in he which attributed unpaid debt, prompted by murders to was a reluctance to police Reynolds admit to the that he killed because of his feelings During cross-examination, for Elizardo. Pitts said that he him had the combat knife with in order to take it to his house, so mother’s that his son would not it find when he visited Pitts. Cooke,
Dr. Gerald a clinical and psychiatrist forensic who defendant, gave tested and evaluated the testimony trial that was of Pitts’s trial version of corroborative the homicides. He although psychotic testified that Pitts or out of touch reality, with
he has some towards loss of control or tendency increased emotional stimu- * * * average lation. has more of a to lose control [He] tendency than he is when if those stressed, stresses fit into these person particularly particu- rejection things lar I have as such of dynamics mentioned, by women, nature. continuing Dr. Cooke also testified Pitts “showed a preoccupation with Vietnam.” Dr. Cooke his reviewed discus- concerning sions with Pitts his Vietnam service: He in was in combat Vietnam wounded in talked and was combat. We about * * * Vietnam. He that he more in he felt one says accomplished afternoon in Vietnam in a his entire combat situation than he has done in life got I since a real he feels like life then, and sense that much of his has been useless and without since that time. purpose diagnosed having Dr. Cooke defendant a disorder. What that means is that he is an individual personality cyclothymic significantly whose moods a time to a it his vary over where point disrupts functioning significantly, and at he is times and day-to-day maybe depressed be he manic. to[o] hyperactive, may though This is a similar is not as as what severe type disorder, [it] people referred to as manic have manic illness. He depressive psychosis depressive go extremes does not as a manic he does not lose does, depressive day-to-day, might. kind of contact with a rate, manic any any reality way depressant having But he the same has his behavior pattern days, weeks, periods outgoing months of and other where he is and depression periods hyperactive, shows his more and sorts of behavior. impulsive manicy along I also indicated that disorder, cyclothymic superim- personality above-average on it he has a chronic level of disorder, posed anxiety chronic basis. a anxiety trial, interrogation of his At Cooke recounted the result Dr. concerning the homicides: having reaching he knife; he for the doesn’t remembers remember, says, [He] stabbing. he doesn’t remember He he but actually says knife hand, slashing wheeling motion and does not around with remembers somewhat seeing after He he does remember remember stabs that. any says specific things of that nature. blood ft***#### he then out of comer of his saw at some He also tells me that what eye image, as a didn’t know who it he was, times he described as an says, person, feeling had a much like the if a male or female but very didn’t know it was
feeling “I I I win, survive, that he he was have have Vietnam, had when *11 things of that nature. under attack,” am great is not a into into him in this detail; any I went this with flashback reliving is I not like he a incident in Vietnam. this is incident, specific specific general saying saying, feeling this I am he had the under am not that. What just having at to win, he had had times in Vietnam stressful situation that having having no to to strike out until there was more motion around survive, He said realized that that was him. that he afterwards only Stacy. ******** again around at then not her, He told me he wheeled and slashed but again knowing does remember the it her at that and then was point hitting feeling stabbing something he had a he itself. he said like does, He stabbing her. he realized later that he must have been and person thing he her on the it was floor, He then said next he saw knew knew, He at and this there was said he blood her, everywhere. experienced point, firefight.” like in after a He said at that is a “Like a stillness Vietnam quote, began he realize what he had done. point of and the defendant’s
Based on this evaluation homicides, opinion his about of Dr. related account Cooke of of the time the murders: the defendant’s state mind feeling of that from not a Vietnam, that situation he some experienced [U]nder danger, feeling in himself to be in but a which he flashback, specific perceives having to strike out to himself in himself as protect part. perceives emotional there, But even more he had an response important, thought and not a he and emotional where stopped impulsive response, response of “I I do a loss control under that,” but, rather, will do will decided, this, combining of and I all that a data, influence extreme emotions what would say, anger rage, rage I reached the which a reaction in which reaction, point anger goes anger define of control and an interferes would as an out which cognitive judgment, recognizing planning, conse- a with the ability person has, deliberating, he such a loss of control. that in my opinion, quences, experiences Segal, Dr. County Examiner, Robert the Camden Medical testified that the deaths of both victims resulted from multiple heavy-bladed stab wounds inflicted single knife with a sharp edge square and a or opposite edge, blunted and that the type Ka-Bar knife offered into evidence the State could have caused the wounds observed on the Segal victims. Dr. identi- following fied the knife Reynolds’ body: (1) wounds on eye left cheek; (2) extending under the neck and towards the left ear; (3) neck; (4) of the base left front of the chest near the left (5) nipple; (6) back; left side of forearm; (7) inner left right ear, side of the penetrated head above the through which skull, scalp, brain strike the bone at the bottom of the Segal (4), skull. Dr. testified that wound which right cut the * * * lung aorta, and the was if uniformly fatal “[u]ntreated wound[;]” wound, adjudged however, he “part be death,” cause which cause he “multiple identified as stab head, neck, addition, wounds Segal and trunk.” In Dr. abrasions, scrapes, chest, found right “on the on the eye- brow and on the left shoulder area.”
From his body, Segal examination of Elizardo’s Dr. observed “multiple multiple scrap[e]s stab wounds and abrasions o[r] practically portions body. major portion over all right leg spared, spared.” most of Specifical- the back is ly, slashing (1) the stab and wounds were inflicted on: the left *12 cheek, continuing upwards split half; (2) to the ear throat, extending ear; (3) throat, towards the also extend- ing ear; (4-6) towards the three cuts on the left side of the skull, penetrated head in the through two of which the skull brain; (7-9) into the three stab wounds on the left side of the beginning chest extending beneath the left breast and to the downward; (10) shoulder; (11), (12) side and back of the left arm; (13) elbow; (14) forearm; back of back [left] [left] [left] (15) hand; finger (16) index junction left of left buttock and (17) (18) thigh; leg; right arm; (19) left lower front of above elbow; right (20) forearm; (21) hand; [right] [right] (22) and (23) neck; (24) midline right of back of back shoulder. left a third and
Internal examination fractured rib revealed humerus, aorta, cut right esophagus, lungs, cut a cut and a lungs. in her blood specific he “no Segal
Dr. also testified that could recall description any that of the wounds would bodies] [on unequivocal had been inflict- indicate and evidence that clear [it postmortem.” ed] Gibbs, driven neighbor had Pitts to
Defendant’s James who testimony concerning Reynolds’ apartment, gave the events He that he heard that occurred after the homicides. stated had apartment building. When Pitts re- screams from inside the car, and knife turned he had on his hands a to the blood Reynolds “pulled in his coat. He Gibbs that had concealed told shotgun Reynolds him” and he had and Elizar- a killed said, throat, Gibbs, you “I According do. to Pitts cut her don’t worry questioned Pitts fur- have about her.” When Gibbs occurred, why killings Pitts told ther about Gibbs “they money.” grinned Pitts and me testified that owed Gibbs said, paybacks I mean is a bitch.” also what about Gibbs “[s]ee up if he these noted that Pitts asked him would “stand question all.” people they you if and house in Hammonton. Gibbs then drove Pitts to his mother’s way, On the Pitts used to wash his hands blood beer papers out car window. Pitts told threw some bloodstained dispose bury his going Gibbs that he was clothes and car, got knife. he out of Pitts told Gibbs will As Gibbs’ “[t]here you a it’s all over.” couple of thousand when be police day, Later to the head- Gibbs went Pemberton gave implicating in the quarters and statement apprehended by police apart- at Defendant was homicides. evening. ment later that above, supra in a
As noted defendant was named County twelve-count indictment returned Camden Grand Reynolds Jury. related to the murder of Paul Six counts *13 counts concerned the events that oc- Stacey Elizardo and six Elizardo’s days curred two earlier at townhouse. trial, guilt-phase of the of the the trial
At the conclusion
manslaughter,
charged
jury
passion/provocation
on
court
2C:ll-4b(2), as a lesser-included offense of murder.
N.J.S.A.
(1986).
Grunow,
request-
Defendant (N.J.S.A. 2C:ll-3(a)(2) Reynolds including the murder of Paul 2C:ll-3(c)); (N.J. Stacey murder of Elizardo N.J.S.A. 2C:ll-3(a)(2) 2C:ll-3(c)); hindering apprehen- and N.J.S.A. S.A. 2C:29-3(b)(l)); (N.J.S.A. pos- counts of prosecution or two sion knife, (N.J.S.A. purpose an weapon, of a a for unlawful session 28:2-2(a)); 2C:39-4(d)); swearing (N.J.S.A. counts of false two handgun, purpose weapon, a unlawful possession of (N.J.S.A. 2C:39-4(a)); (N.J.S.A. tampering with a witness 2C:12-3); aggravated (N.J.S.A. 2C:28-5(a)(2));terroristic threats 2C:12-l(b)(4)); (N.J.S.A. by pointing a firearm assault 2C:39-5(b)). (N.J.S.A. handgun possession of a unlawful respect to penalty phase, jury determined with proved had the existence of homicides that the State both 2C:ll-3c(4)(c), that murder aggravating factor N.J.S.A. “[t]he vile, wantonly or inhuman outrageously or horrible mind, torture, aggravated battery depravity of or an it involved jury that the State had not estab- to the found victim[.]” in connec- aggravating factor lished the existence of second murder, purposely “the defendant Reynolds tion with person of death to another knowingly grave created a risk 2C:ll-3c(4)(b). regard With addition to N.J.S.A. victim[.]” Elizardo, had not found that the State to the murder factor, aggravating the existence of a second established *14 murder, Reynolds the murder connection with was “[t]he detection, purpose escaping apprehension, committed for the of * * trial, for another offense punishment, or confinement 2G:ll-3c(4)(f). N.J.S.A. Reynolds, to of respect jury the murder Paul the
With following mitigating determined that the factors existed: (a) under the influence of The defendant was extreme mental or emotional disturbance insufficient to constitute a defense to 2C:11- [N.J.S.A. prosecution; 3c(5)(a).] (b) The victim in or consented to the conduct solicited, which participated 2C:ll-3c(5)(b).] resulted in his death; [N.J.S.A. (f) significant The defendant has no criminal [N.J. history prior activity; 2C:ll-3c(5)(f).] S.A. (h) other factor which is to the defendant’s character or record relevant Any 2C:ll-3c(5)(h).] or to the circumstances of the offense. [N.J.S.A. jury rejected proof mitigating The defendant’s factor 2C:11- 3c(5)(d) capacity appreciate defendant’s “[t]he wrongfulness his conduct or to conform his conduct significantly impaired requirements of the law was as the result intoxication, degree of mental or defect or not to a disease but prosecution.” jury sufficient to constitute a defense to The single aggravating outweighed determined that the factor was mitigating factors. Elizardo, regard jury With to the murder of found the following mitigating factors were established: (a) The defendant was under the influence of extreme mental or emotional [N.J.S.A.
disturbance insufficient to constitute a defense to 2C:11- prosecution; 3c(5)(a).] (f) significant The defendant has no criminal [N.J. history prior activity; 2C:ll-3c(5)(f).] S.A. (h) other to the character or record factor which is relevant defendant’s Any 2C:ll-3c(5)(h).] [N.J.S.A. or to the circumstances of the offense; jury The determined that defendant had not established the mitigating 2C:ll-3c(5)(b) (“[t]he existence of factor victim solic- ited, participated or consented to the conduct which resulted 2C:ll-3c(5)(d) death”), (“[t]he capacity in his or appreciate wrongfulness of his conduct or to conform his requirements significantly conduct to the of the law im- was intoxication, paired of mental or defect result disease degree prose- to a sufficient to but not constitute a defense to cution.”). aggravating concluded that the factor was outweighed by mitigating Accordingly, factors. defendant to death for murder trial court sentenced Stacey Elizardo. imprisonment
Defendant also sentenced to life thirty-years parole ineligibility Reyn- for the murder of Paul addition, olds. defendant received concurrent sentences for *15 remaining, unmerged of the years counts indictment: seven (N.J.S.A. possession purpose of a firearm for an unlawful 2C:39-4(a)); years concurrent terms of four each on count three, (N.J.S.A. 2C:29-3(b)(l)), hindering apprehension count seven, (N.J.S.A. 2C:28-5(a)(2)), tampering with a witness and (N.J.S.A. 2C:12-3), eight, count terroristic threats and concur- five, eighteen on rent terms of months each count false swear- (N.J.S.A. 28:2-2(a)), nine, ing aggravated and assault count (N.J.S.A. 2C:12-l(b)(4)).1 challenges on
Defendant his convictions and death sentence grounds. each of defendant’s numerous We now consider contentions.
II. Constitutional Issues Jersey’s capital punishment Defendant contends that New act, rights by him g, infringes afforded N.J.S.A. 2C:ll-3c Jersey this contention in Constitution. We addressed New 13, (1987), supra, 106 25-26 and Biegenwald, v. N.J. State Ramseur, 123, (1987). 106 166-97 We adhere to State v. N.J. penalty our that the death statute does not violate conclusion four, merged possession a knife for an unlawful 1The trial court count twelve, (N.J.S.A.2C:39-4(d)), purpose with the two counts of murder. Count (N.J.S.A. 2C:39-5(d)) merged possession knife was with count unlawful of a (N.J.S.A. eleven, ten, 2C:39~5(b)), shotgun possession of a sawed-off and count merged six. was with count 598
either federal prohibitions against or state constitutional cruel Const, punishment. VIII, and XIV; unusual amends. U.S. N.J. Const, I, para. reject art. 12. We also as meritless 1947 infringes rights defendant’s assertion that the statute on the guaranteed I, paragraph Article 1 of the State Constitution. capital punishment
Defendant also contends that the
act
is unconstitutional because it does
jury
not authorize the
disregard
balancing
aggravating
mitigating
factors
mandated
the act and return a non-death verdict based on
mercy.
rejected
considerations of
We considered and
a similar
Ramseur, supra,
contention in State v.
where we held that an
jury
instruction that the
“should decide the case on the evidence
* * * ”
bias,
any
prejudice
sympathy
without
or
did not violate
rights,
123,
296-99,
defendant’s constitutional
106
citing
N.J.
Brown,
837,
v.
107
U.S.
S.Ct.
93 L.Ed.2d
California
(1987).
We also
observed Ramseur that the trial court’s
charge
preclude
“did not
jury
considering
from
possible
all
mitigating circumstances
sympathy
and such
as those circum
might inspire.” Ramseur,
stances
III. Issues Guilt-Phase Motion. Defendant’s Severance A. to from the indict moved before trial sever
Defendant on events that occurred that were based ment all counts 20, 1984, days prior on March two Stacey Elizardo’s residence highly argued that it be Defendant would the homicides. together tried capital murder offenses be prejudicial for the 20, of March charges on the events unrelated based with and the homicide asserting only connection between that the place at the the latter took counts was that pre-homicide argued that State apartment of one of victims. separate counts 20, included as or not of March whether events love for indictment, prove relevant were dated, and, particularly, men she jealousy of other Stacey, his victim, Reynolds. The trial court Paul animosity toward from challenged counts sever the motion to denied defendant’s indictment, observing it that was culminating surrounding of March 20 the two dates the facts satisfied that * * * of the mosaic, so interlocked, of March are so part the homicides with that evidence to tailor that it would be it, possible called prosecutor bring bring out and acts, and not especially as to out statements such a way total case considering of the State’s themselves are that the acts part parcel because defendant, especially on the of this intent to motive part with prove begins on the a series of facts events, is a series of it seems to me this in the homicides, until it results is continued 20th, uninterrupted * * * * * * than are more March 20 all facts of the episodes chances are coming trials going in the homicide anyway. into evidence to be likely chal- to determine whether to Rule 3:7-6 first look We indictment joined in the same properly be lenged counts could provides: Rule That relating to the homicides. the counts in a charged or accusation same indictment in the more offenses be may Two or charged of the same or are if the offenses count for each offense separate *17 on 2 or more transaction or the same act or or are based on similar character 600 together constituting or of acts transactions connected a common parts joinder prejudicial
scheme or Relief from as shall be provided afforded plan. by 8:15-2. R. context, In is phrase this critical Rule “if the 3:7-6 * * * * * * charged on offenses are 2 or more based acts or * * together phraseolo connected transactions The Rule’s gy hardly Moore, self-explanatory. Taggart 8 J. See W. & J. Wicker, Practice, (2d 1988) Moore’s Federal ed. ¶ 8.05[3] (“[C]ourts have sometimes found it difficult determine to they ”). acts are ‘connected’ when as when are ‘the In same.’ case, however, the connection between the of March events readily apparent. testimony 20 and the homicides is about of March 20 by events included references to a threat “get” late, Reynolds keeping Stacey out and to addition, defendant that Stacey. threats were directed at In Stacey’s holding defendant threatened friend Della Polla throat, the evening knife to his and later in threatened life shotgun. jeal with a sawed-off The evidence of defendant’s ousy and threats of violence toward other male friends of Stacey clearly was relevant to the issue of defendant’s intent homicides, state of mind at the time also material State’s effort to establish defendant’s motive for murders March 22. The State’s to offer entitlement proof Carter, 86, 102 of motive is well settled. State v. 91 N.J. (1982). view, clearly our there existed a connection between March 20 events and those March 22 sufficient to relating joinder single authorize counts in a both dates indictment, in accordance Briley, with Rule 3:7-6. v. See State 498, (1969); 35, (1961); 53 503 Begyn, N.J. 34 State v. N.J. 56-57 (1958); Manney, 362, Cole, 26 366 State v. N.J. State v. denied, N.J.Super. (App.Div.1977), 142-43 certif. 78 N.J. (1978). argues Defendant also that the trial court abused its motion, denying alleging discretion in defendant’s severance potential significant for prejudice because of the consolidation multiple involving alleged offenses acts of in a violence
601 may permis- Although joinder of offenses be single indictment. under Rule 3:7-6, in the trial is authorized severance sible joinder prejudice to result to the likely if court’s discretion 3:15-2(b) provides: defendant. Rule prejudiced or the State is that a defendant reason it for other appears If any joinder in an indictment or or of defendants of offenses mandatory or permissible grant of a sev- counts, trials order an election separate court may accusation relief. or direct other defendants, appropriate erance of joinder from of the prejudice Defendant claims substantial primari- He asserts the homicide counts. March 20 counts with acts exposure jury of the to evidence violent ly very days prior to the homi- by defendant two allegedly committed jurors’ in the minds an unfavorable necessarily created cides under argues joinder Defendant impression of defendant. ability to inevitably jury’s affected these circumstances Defendant’s contentions impartial trial. afford him a fair and death-penalty prose- evaluation, in a particularly merit careful multiple prejudice joinder from potential for cution. fifty nearly trial illuminated single in a criminal offenses Judge Hand: years ago by Learned together, danger crimes are tried when several There is indeed always although so much that, that is, use the evidence cumulatively; may charges might not of the have persuaded admissible one would be upon any guilt, to all. This it convince them as accused’s the sum of will them of the of the transaction direct evidence the doctrine that only violates possibility charged is not to be convicted and that the accused be ordinarily accepted, will life such a in the affairs of criminal Yet ordinary because of his disposition. convincing because the issue is and its exclusion is rather is a factor, disposition unmanageable When the it is not relevant. rationally than because practically examined in occasions can be on several properly accused’s conduct separate the trial objection consideration is whether and the only detail, disappears, v. jury. States for the [United too confused not become as a whole may (2d Cir.), Lotsch, 59 S.Ct. 83 cert. U.S. 793, 307 denied, 622, 102 F.2d 36 35, (1939).] L.Ed. 1500 ample discretion must be accorded A trial court of offenses joinder grant relief from determining whether supra, Briley, v. State prejudice. potential because supra, 26 N.J. at Manney, v. 368. A 53 N.J. State 503; tried whether, assuming charges were inquiry is critical 602
separately, sought evidence of offenses to be severed would be admissible under Evidence Rule 55 in the trial Moore, v. remaining charges. State N.J. 239, (1988); 113 274 Kent, N.J.Super. v. 215, State accord (App.Div.1980); 173 220 States, Drew v. United (D.C.Cir.1964). 331 F.2d Rule precludes admissibility prove evidence other crimes to propensity conduct, State Kocio toward criminal v. *19 lek, N.J. 400, (1957), Rule expressly 23 419 but the permits such prove issue, genuinely evidence other facts in such as motive Stevens, 55; or intent. Evid.R. State v. 289, 115 N.J. 300 State (1989); Garfole, v. N.J. 445, (1978), 76 450 appeal after remand, 80 N.J. 350 (1979).
Whether the 20 March counts separately were tried or counts, consolidated for trial homicide evidence con cerning critical events March 20 would admis have been in the trial charges. sible of the murder Evidence of defen jealousy hostility victim, dant’s toward the Reynolds, Paul Polla, and toward Della as well as evidence that defendant to harm threatened Della Polla with knife and shotgun a would in prosecution prove have been admissible the homicide Breakiron, motive, defendant’s state of mind and see State v. N.J.Super. 442, (App.Div.1986), 210 460-61 other rev’d on Slocum, 108 N.J. 591 grounds, (1987); N.J.Super. State v. 130 358, (App.Div.1974), 362-63 sharply issues that were contested Stevens, supra, State v. (Other- at trial. N.J. 115 at 301 Cf. any crime evidence can prove genuinely be admitted to fact Hence, issue.). prejudice resulting join to defendant from der of March 20 counts in the homicide indictment by recognition lessened if those even counts were severed, the jury exposed homicide would have been to evidence Coruzzi, recounting State v. the events of March 20. See 189 denied, N.J.Super. (1983) 94 N.J. 531 (App.Div.), certif. (“[A] any prejudice defendant will suffer joint more in a separate trials, he trial than would in because the evidence of alleged the other in any crimes would be admissible under event 55.”). Evid.R. potential also that the prejudice by
We note created joinder of counts this case was lessened because defendant homicides, focusing did not contest his commission of the guilty manslaughter defense on the contention that he was addition, court, than rather murder. the trial in its instruc- tion, jurors cautioned the separately to deliberate on each of the counts, judgment and to return twelve if only conviction convinced that each element of the individual counts had been proved beyond a Although reasonable doubt. the instruction adequate, it preferable, would have been particularly in a capital generally case and multiple joined when counts are indictment, single for the emphasized trial court to have to the duty any negative its prejudicial impressions avoid might joinder otherwise be created of several charges single criminal in a indictment. record,
Based on our review of the we hold that the trial court’s denial of defendant’s motion to sever was not an abuse discretion, and that defendant significantly preju- was not diced joinder of the March 20 counts with the homicide guilt phase observe, counts in the proceedings. We *20 however, that the trial court did in jury not instruct the penalty phase, do, obliged as it was to evidence relating to the non-homicide counts of the indictment were to aggravating penalty-phase be considered as factors in the weighing process. Moore, 276-77; supra, State v. 113 atN.J. Rose, accord v. 112 supra, State at 505-06. N.J.
B. Charged Jury Aggrava- Should the Trial Court Have on Manslaughter?
ted 1. Imperfect Self-Defense-Aggravated Manslaughter. acknowledged opening Defendant’s counsel in his statement Elizardo, Reynolds Stacey that defendant had killed Paul but asserted that the homicides had occurred the heat passion provoked by provocation. According reasonable to summation, defense counsel’s review of the evidence in provocation Reynolds’ making insulting consisted of and mock- Pitts, ing Reynolds’ suggesting Stacey remarks to was engaging drugs, exchange earn prostitution money to shoves, and, pushes finally, Reynolds’ telling Pitts that going get gun. he requested, was to his bedroom to a As charged jury passion/provocation manslaugh- trial court on ter as a lesser-included offense of murder. N.J.S.A. 2C:11- 4b(2). request charge aggravated
Defendant did not a man- slaughter, request jury but did the trial court to instruct the on imperfect argument the doctrine of self-defense. The advanced honest, reasonable, necessarily was but not Reynolds’ get gun endangered belief that threat to a defen- safety provocation support dant’s constituted sufficient to passion/provocation manslaughter. verdict of The trial court requested Court, denied the instruction. Before this refusing renews his contention that the trial court erred in instruct imperfect doctrine of self-defense. Alternatively, defendant contends that our decision State v. Bowens, (1987), argu- N.J. 622 filed after trial but before appeal, requires charge ment of defendant’s a trial court to aggravated manslaughter prove whenever evidence offered to imperfect required self-defense is material to the state of mind prove murder. Bowens,
In supra, sequence State v. we reviewed leading adoption provisions events of the Code of (the Code) Criminal relating Justice to self-defense. Id. at 629. legislature We noted that the expressly rejected subjective self-defense, test for adopting objective instead a standard of to determine reasonableness when a decision to use force for self-protection justifiable Ibid.; under the Code. see N.J. 2C:3-4(a). Bowens, S.A. we also concluded that an honest but unreasonable belief in the need to self-protec- use force for *21 tion, insufficient justify under the Code to an otherwise unlaw- homicide, ful could not of itself mitigating constitute a basis for unspecified homicide to an form manslaughter. Id. at 630- 31.
Nevertheless, we observed in Bowens that evidence facts “imperfect sufficient to establish may self-defense” in certain directly cases “bear question on the of whether the homicide knowing purposeful, was or and would be admissible to counter these essential elements of the offense of murder.” Id. at 632. examples noted We of circumstances in which an unreasonable but honest in belief the need to pertinent use force could be to the elements of Code offenses: given
An General of example the multi-faceted Attorney nature of the aggressive defense includes the threatening overreaction in self-defense to or e.g., shooting conduct, to kill an unarmed attacker who has fallen to the ground. He noted that to the extent the victim’s conduct constitutes “reason- mitigated able Legislature’s the offense provocation” be may become the manslaughter. homicide special offense, passion-provocation N.J.S.A. 2C:11- 4(b)(2). justify Evidence of self-defense does not imperfect it conduct, mitigates given the offense. Another is the reckless example use of mortal seeking force in disregards one self-defense, when an attacker a risk repel pushing aggressor down a cliff will result in death. That person may knowingly guilty not have committed murder or but be purposely of one of may manslaughter: the forms of either reckless homicide under N.J.S.A. 2C:11- 4(b)(1) manifesting or reckless homicide extreme indifference to human life 2C:ll-4(a). under N.J.S.A. The evidence bears on the essential elements of a Code offense. [Id. at 633.] Accordingly, we held in although Bowens that imperfect recognized self-defense justification the Code as a not conduct, for otherwise unlawful in cases the issues of many the reasonableness of the defendant’s conduct charged to the presented defense of the substantive crimes will have relevance to the essential elements of the homicidal act: it whether was the object actor’s conscious to inflict whether force, death was almost deadly certain to follow, whether the act was done or with reasonable recklessly [Id. provocation. 634.]
Defendant holding contends that our in Bowens com pels the conclusion that the trial court committed reversible failing, sponte, error charge aggravated sua manslaugh ter on the basis of the evidence Reynolds that defendant killed because an honest but unreasonable fear for safety. his own However, explained Bowens, as we every claim of *22 imperfect aggravated self-defense leads to an manslaughter charge. predicate instruction, for such an when it is based self-defense, on imperfect evidence of is that such evidence negates required murder, either the mental state or demon- provocation strates part acts of on the of the victim to an extent sufficient to jury afford the a rational basis for convict- ing the defendant of one of the Code’s forms of manslaughter. 4b; N.J.S.A. 2C:ll-4a and see id. at case, 633. In this Reynolds testified that “made a move to one of the * * * * * * get gun,” bedrooms this and it was “at that time pulled I the knife out from the assaulting back of me and Paul with that knife.” Defendant [sic ] described assault as reflex,” “almost an instantaneous like committed in a “frenzied type state of mind.” We construe testimony relat- ing Reynolds Reynolds’ murder to “get gun” threat to as relevant to the crime of passion/provocation manslaughter, 2C:ll-4b(2), N.J.S.A. on which the charged trial court jury. However, Reynolds’ defendant’s version of the homicide does present negate facts that the state of indispensable mind murder, for a 2C:ll-3a(l) conviction of (2), N.J.S.A. or afford a rational basis on which to convict defendant of aggravated either manslaughter. or reckless N.J.S.A. 2C:ll-4a 4b(l). aspect No of defendant’s testimony suggested that his state of mind was Accordingly, “reckless.”2 we find no error in the trial court’s charge aggravated failure to or reck- manslaughter less on its own initiative based on defendant’s 2C:2-2b(3) 2N.J.S.A. provides: A acts person to a recklessly material element of respect an offense disregards unjustifiable when he consciously substantial and risk that the material element exists or will result from his conduct. The risk must be degree of such considering a nature and that, the nature and purpose the actor’s conduct disregard and the circumstances to him, known its gross involves a deviation from the standard of conduct that a reasonable would observe in the actor’s person situation. "Recklessness," "with reck- lessness” or meaning. terms have the same equivalent prove “imperfect in connec- testimony offered to self-defense” Reynolds homicide. tion with Capacity Aggravated Manslaughter. 2. Diminished — testimony Expert psychiatric offered defendant’s behalf *23 condi- diagnosis included a of defendant’s mental and emotional opinion concerning state of mind tion as well as an defendant’s supra at 591-592. Although at the time of the homicides. See argue did not us the defense of diminished before Breakiron, supra, 2C:4-2; N.J.S.A. State v. capacity, see 108 591, testimony psychiat- N.J. nor assert that the of defendant’s manslaughter, expert supported charge aggravated of we ric a requested supplemental questions. response on these In briefs testimony request, contends that the of to that defendant now personality dis- concerning cyclothymic defendant’s Dr. Cooke order, 591, opinion supra at expert’s that of combined with victims, supra the defendant’s state of mind when he stabbed sponte, to instruct the 592, court, sua compelled at the trial manslaughter. capacity aggravated and jury on diminished disagrees arguing psychiat- that defendant’s sharply, The State any expert ric did not establish connection between of mind the homi- “personality disorder” and his state when Moreover, asserts cides committed. the State were killed the throughout defendant conceded that he the trial 612-613, “knowingly,” his entire at but based victims infra in the heat of theory on the that the homicides occurred defense Finally, the passion, by provocation. induced State reasonable request on defendant did not instructions contends that since manslaughter, aggravated the capacity either diminished or through “meticulously sift duty court had no trial [to] if some combination of facts entire record” to determine See State v. charges. might support jury such inferences Choice, 98 N.J. 295, (1985). Breakiron, supra, 108 N.J. considered State v. we concluded that capacity diminished defense and designed Legislature justification as a or an not nor as a [it] excuse, bearing of or matter diminished but as a factor partial responsibility, designated or absence of an essential element of the crime as presence Legislature that all bom Code. are not mental contemplated equal want and it would to consider a whether defective capacity, mentally would be as would certain as another death would result
person practically from the infliction a serious [Id. blow. at 608.] also We observed the mere of mental disease or defect does murder presence reduce perforce degree manslaughter. determining to an For unspecified purpose guilt, negates criminal diminished either of mind state capacity required if or it does not. [Id. particular offense, successful, 609.] Breakiron does not
Although the discussion in amplify meaning defect,” phrase “mental disease or as it used in N.J.S.A. 2C:4-2, we adverted to the difficulties inherent attempting to correlate categories mental diseases with the criminal culpability contained in the Code: Not mental disease or defect has every relevance the mental states legion. the Code. The and forms prescribed by of mental disease are variety range from They paranoia schizophrenia affective disorders and psycho- Some, such as pathy. or anti-social depression disorders, have little no *24 knowledge. relevance such are Others, relevant. schizophrenia, clearly Some states have define relevant mental attempted diseases or defects. jurists Our Code does But not. and health “[b]oth mental professionals recognize legal that is no there correlation between standards of perfect of N.J. ‘insanity’ psychiatric classifications mental disorder.” 618-19 [108 (citations omitted).]
n. 10 psychiatric expert Defendant’s diagnosed Dr. Cooke defen- having “cyclothymic disorder,” dant as a personality a condition classified as a mental Psychiatric disorder the American Diagnostic DSM III-R: APA, and Statistical Association. Psychiatric Manual Disorders (DSM III-R) (3d 226-28 ed. Rev.1987). Dr. Cooke described condition as a mood disor- der significant that at times depression, causes but does not cause one to reality way lose “contact depres- with a manic might.” addition, sant Dr. Cooke testified that defendant disorder, anxiety had a “chronic and above-average level anxiety basis,” on a chronic recognized a condition also by the Psychiatric Association, American 251, DSM III-R at and char- anxiety manifested or excessive by unrealistic acterized hyperactivity. Ibid. tension and mental condi- diagnosis of defendant’s testifying to his After of defendant’s state tion, opinion asked his Dr. Cooke was explained that that homicides. He at the time of the mind defendant, physical diagnostic tests of on opinion was based scene, to him. statements crime and defendant’s at the evidence Dr. above, the relevance of Although quoted supra at warrants its issues under consideration opinion to the Cooke’s restatement: feeling not a Vietnam, of that from situation he some that experienced
[U]nder danger, feeling in himself to be in which he but a flashback, perceives specific having himself out to part. himself as to strike protect perceives there, that he had an emotional response more But even important, thought and he not a where stopped emotional response, response impulsive a of control under the loss but, rather, “I do I will do this, that,” will decided, combining all that data, I emotions and what would say, influence of extreme rage, anger I which rage his reached point a reaction which reaction, anger goes interferes anger and an which out of control define as an would recognizing judgment, planning, conse- cognitive has, ability person deliberating, such a loss of control. he that in experiences my opinion, quences, opinion of defendant’s expressly connect his did not Dr. Cooke condition, mental of defendant’s diagnosis mind to his state of potential “testing” revealed observed that but “loss of control.” plain record, that it was cannot conclude we On jury, sua instruct the to have failed to for the trial court error manslaughter aggravated capacity and sponte, on diminished condition was defendant’s mental hypothesis in Dr. Cooke’s cognitive ability described of the loss of cause Breakiron, supra: O’Hern noted testimony. As Justice to the defect has relevance every mental disease or “Not at 618 n. 10. 108 N.J. prescribed by the Code.” mental states only evidence in Breakiron also observed We *25 respect of diminished admitted mental disease that should be defendant question of whether relevant to the capacity “is that crime.” Id. at 618. to commit the requisite mental state had the mind state of when testify that defendant’s did not Dr. Cooke 610 by disorders;
he stabbed victims was caused his mental rather, opinion he his on based what defendant had told him evidence, about physical and on the homicides as as on well testing Nor testify defendant. did Dr. Cooke particular defendant’s mental generally disorders were ac- knowledged among psychiatrists capable affecting to be ability possess one’s state required by of mind the Code Rather, for murder. testimony thrust of Dr. Cooke’s that defendant committed the rage, homicides in a state of Rey- reaction provoked by his emotional encounter with request did Inasmuch defense counsel not a diminish- nolds. capacity ed charge, and the significant- evidence offered did not ly relate defendant’s mental disorder to the state of mind psychiatric expert, described defendant’s we hold it that was plain failed, error for the trial court to have sponte, sua jury instruct the capacity aggravated diminished man- slaughter theory on the that defendant’s mental condition af- convicting forded the a rational basis for charge. Choice, 299; lesser supra, State See v. 98 N.J. at cf. Juinta, N.J.Super. State (App.Div.1988)(plain v. 711 error charge trial court to fail to capacity diminished in murder prosecution principal where issue insanity at trial concerned defense).
3. Aggravated Manslaughter Testimony. —State-of-Mind Although us, not raised counsel at trial or before testimony of expert concerning defendant’s state of mind he when stabbed the victims warrants our consideration appropriateness of the aggravated manslaughter charge solely based expert’s on the testimony. state-of-mind We ad- dress independently this issue of defendant’s contentions con- cerning imperfect self-defense and diminished capacity. involved, the death penalty duty it is the of this “[WJhere any Court to examine the affecting record for errors rights accused, though substantial even not made a ground appeal.” Gerald, v. (1988) State 113 N.J.
611 289, 330, 330, 49 289 Taylor, 213 S.C. S.E.2d (quoting v. State (1948)). Dr. particularly on Cooke’s statement that
We focus
of
under the influence of
experienced “a loss
control
* '*
* * *
*
reaction,
rage
which I would
a
emotions
extreme
* * *
goes
of control and
which
anger
that
out
an
define
person has,
cognitive ability
planning,
a
interferes with
* *
deliberating
consequences,
Un
judgment, recognizing
testimony by
provided support
Dr.
for
questionably, this
Cooke
jury, specifically requested by
court’s instruction to
manslaughter. As
counsel,
passion/provocation
we
defense
Bonano,
(1971):
59
515
v.
N.J.
noted
State
* *
*
is an intentional homicide done
manslaughter
in sudden
Voluntary
aforethought.
[Id.
at
blood,
523.]
or
without malice
heat
passion
Guido,
(1963),
pas-
Although Dr. Cooke testified that ability, expert cognitive did conclude with his fered required purposeful or of mind the state defendant lacked Code, “purposeful,” is knowing conduct Under murder. object” result, person’s “conscious respect if it is the result, 2C:2-2b(l); N.J.S.A. to cause such a is conduct “know- if ing” person is practically “aware it certain 2C:2-2b(2). conduct cause result.” N.J.S.A. will such anger testimony cogni- that defendant’s “interfered with [his] *27 judgment, ability planning, recognizing consequences” tive [for] concept passion was consistent with the that the sufficient to passion/provocation manslaughter sustain a verdict must dis- a turb defendant's reason: manslaughter appear reduce the crime from to murder it must [T]o that killing during resulting passion occurred the heat a from a reasonable provocation, passion effectively deprived mastery a which the killer of his understanding, passion upon a which was acted before a time sufficient to
permit sway passed. King, reason to resume its had v. 37 N.J. 300 [State 3 (1962).] expert’s testimony Thus the supported passion/provocation a manslaughter theory, but did not describe defendant’s state of in mind a responsibility knowing manner inconsistent with murder. Defense counsel colloquy conceded as much his concerning with the trial court request charge for a imperfect self-defense: THE COURT: In terms of the manner in which case has to been tried self-defense, manslaughter, we passion, don’t have have we at best heat of provocation; perceive your defense, way reasonable if I that is the the case has jury. been tried punishing passion/provocation 3The Model Penal Code’s rationale for man- slaughter severely empha- less than is murder somewhat different from that
sized at common law: rage, engendered, necessarily A probably sudden however does not or even negate likely an intent kill. More it reinforces firmness of the therefore, most, provocation actor’s take resolve to the life of another. At quality affects the of the actor’s state of mind as an indicator of moral properly regarded recognition blameworthiness. Provocation thus as a inquiry the law that into the reasons for the actor’s formulation significance intent to kill will sometimes reveal factors have that should grading. perhaps is a It concession to human weakness and to non-detera- bility, recognition response fact one who kills in to certain provoking regarded demonstrating significantly events be should deficiency different character than one who kills in their absence. [Ameri- Institute, II, 210.3, can Law Part Model Penal Code and § Commentaries (1980).] comment at 54-55 That is correct. MR. GOLDSTEIN: absolutely knowing killing admit in And you your THE COURT: aspect opening is not in issue and the defendant testified it and statement really: not in that he killed —that when he was MR. That is issue GOLDSTEIN: doing doing knowingly. doing That is not in issue. But he was he was it what doing knowingly have in the words of Dr. Cooke it because he he was may as one which he had to defend the situation “temporarily misperceived Dr. at the time.” That is what himself and act and emotionally impulsively said. Cooke knowingly. if he has the fact, I don’t think that means he didn’t do it force to that would that in the need to use defend himself, honest belief deadly knowingly at that time that because he makes decision be consistent with saying I is that decision must force to defend himself. What am he use deadly all facts and but it should constitute circumstances, is unreasonable under * * *. self-defense what was known under 2A as imperfect Moreover, testimony suggesting that Dr. Cooke offered no state of mind when he stabbed the victims knowing. purposeful or See N.J.S.A. reckless rather than 2C:2-2b(3)(“A recklessly respect to a material person acts *28 disregards a consciously he sub element of an offense when element exists unjustifiable risk that the material stantial and Thus, in Dr. conduct.”). do not find from his we or will result jury the testimony a basis on which expert rational Cooke’s any of other lesser-included could convicted defendant have murder, manslaugh except passion/provocation of offense 265, 276 (Amagas), v. 102 N.J. ter. See Crisantos State conclude, Dr. Hence, on our of (1986). we based review of mind testimony concerning defendant’s state opinion Cooke’s homicides, properly the court the of the trial at time manslaughter and did charged jury passion/provocation on omitting jury any on other lesser-in err in to instruct the not offense of murder. cluded for the plain hold it not error recapitulate,
To we that was charge jury aggravated to on to have omitted trial court proofs manslaughter in connection with the offered —whether self-defense, imperfect diminished bearing on defendant of the capacity, of mind. Examined in the context or state attempted persuade jury trial, proofs to entire defendant’s homicides, although deliberately, that the committed were product impassioned impulse, provoked by circumstances to that caused defendant lose The control emotions. proofs thrust defendant’s was that his actions were uncon- trollable, not that his conduct was reckless sense consciously disregarding a known risk. We are satisfied that charged jury, passion/provocation on manslaughter, was thereby opportunity afforded to consider that alternate proofs verdict to murder to which essentially defendant’s were Thus, although directed. we hold that defendant was not charge to aggravated manslaughter, entitled on we are also satisfied that its jury submission have would had no effect the verdict.
C. Effect of State v. Gerald.
Subsequent
argument
to the trial
appeal
and
of the
in this
case,
Gerald,
(1988),
we held
State v.
those same he the death [Id. provisions may penalty. 69.] — instructed, in Gerald was consistent with the literal language Act, Capital Punishment N.J.S.A. 2C:ll-3a(l) (2), capital that a conviction for murder could be sustained if it found either that the purposely knowingly defendant or death, caused or purposely knowingly bodily resulting caused serious injury in death. Because we concluded that the susceptible evidence the record was finding, either we reversed capital murder convic- tion and remanded the matter for a new trial. Id. at 91-92. *29 our opinion in acknowledged, Gerald we in although a some- context, what different capital that the evidence in some mur- der so compelling cases was question that there could “no be the intended death of his victim.” [the Id. at defendant] (citing Ramseur, 123, 79-80 supra, State v. 106 N.J. and State v. Biegenwald, supra, 13). 106 N.J.
615 case, having the without benefit court in this The trial Gerald, charged jury in accordance with holding our require jury not to deter did Its instruction the statute. Gerald, specifically, required whether mine victims, or knowingly the death of or caused purposely caused purposely knowingly or serious bodi whether defendant court’s resulted in death. trial omission ly injury that no contemplated by is of material charge jury as Gerald respect for the mur significance to defendant’s conviction impose jury the death Reynolds because the did der Paul Thus, exposed to the same sentence penalty. defendant was imposed he to have been convicted been were that could have Gerald, at 91. non-capital supra, v. murder. See State N.J. However, sentenced to death because defendant was Elizardo, Stacey determine we must whether for the murder charge requires rever trial omission of Gerald court’s satisfied that on conviction. We are sal of defendant’s murder minimally adequate to meet the the evidence was this record v. Crisantos standard established State “rational basis” (1986), 265, characterized as which we (Arriagas), 102 N.J. charge. imposing threshold for a lesser-included-offense a low image at that testimony Stacey just “was Defendant’s thought to harm “he didn’t have intentional time” and that charging court the trial people” these would have warranted non-capital if had been decided jury murder Gerald conclude that the of this case. Because we the trial before appropriate, we consider charge would have been Gerald affecting clearly capable the ver whether its omission was Hence, evidence in the record ascertain dict. we evaluate the effectively a determina jury’s verdict constituted whether the knowingly caused victim’s purposely that defendant tion (1988)(Although Zola, v. 112 N.J. 406-07 death. State Cf. had diminished-capacity instruction positioning of trial court’s manslaughter confusing availability of potential jury about finding capacity, of diminished independent of verdicts *30 manslaughter knew was available verdict but concluded that murder.). proper was verdict the Gerald issue was not raised
Because parties, we requested supplemental argument concerning briefs after Ger- ald 's effect on defendant’s conviction the Elizardo murder. argues Defendant in Gerald mandates holding that our rever- Elizardo, sal his for the murder conviction contending that possible for jury it was to have determined that he intended only bodily to cause her injury serious and not death. Defen- primarily trial, relies testimony dant on his own at and that of Cooke, Dr. a jury as basis for a determination that he did not intend to kill Elizardo. On direct examination defendant stated: through At the time was a it moment that the month I I went can past, recall now the circumstances. The actual assault like was almost an instantaneous reflex like for me to have assaulted him. I assaulted Paul knife; while doing I was from back of so, me it was like a was, state of mind, frenzied-type just image that which I
whereas, now know was it behind was Stacey me, that time that I wheeled around and I sliced with the knife at Stacey the time. following exchange during occurred defendant’s cross-ex- amination: thing jury And Q. believe it’s the tell macho to this you killed her you prostituting pimping because she was herself and that was is Reynolds her, jury that what this want to believe? you jury A. I thought want the to that I believe didn’t have the intentional to harm these people. jury Q. do My question, sir, want this to you really believe, only pimping killed but killed her because
you her, you Paul her a Reynolds as is that what this prostitute, want to believe? you anything A. I don’t want them to believe like that about Stacey. Dr. Cooke testified that defendant told him he was initially assaulting Stacey unaware that he was Elizardo: He also tells [defendant, then me that out of the Pitts] corner he eye image, saw what at some times he described as an [sic] didn’t know person, itwho he if feeling was, didn’t it was a says, know male had a female, but feeling much very like the that he had when was in he I have I to Vietnam, win, things I have am under survive, attack, of that nature. great I went into this with him in not a detail; flashback into any reliving that is not he is incident, like specific specific incident Vietnam. I saying saying, general feeling am not I that. What am he had under this just having stressful situation he had had at times in Vietnam in win, having motion around having until there was no more to strike out survive, realized that that was Stacey. that he afterwards him. He said only *31 mind” on “state of testimo- also relies Dr. Cooke’s Defendant killed opinion that defendant expressed the ny in he which reaction, he rage which in the heat of a Elizardo Reynolds and described as anger anger goes an which interferes with of control and that out recognizing judgment, planning, cognitive has, consequences, ability person deliberating, such a loss of control. in he that my opinion, experiences charge the trial court did not concedes that
The State Gerald, leaves contends that evidence required by but as Stacey knowingly killed purposely that defendant “no doubt” opening part defense counsel’s relies in on Elizardo. The State jury: to the statement March going indeed show that on that the evidence will to tell I am
Now, you to death. It and Elizardo Pitts did stab Paul Reynolds Stacy 22nd, Darryl it is in on that as of what day in trial so much a happened is not question it fact a happened. question why [********] sane, was a [Ijt’s show that Darryl capable the evidence will our position rage him to take part into a which literally compelled
man who was provoked killing. this Vietnam style Elizardo on threat to kill to defendant’s The also refers State on cross-exami- 20, 1984, concession and to defendant’s March to kill you knife want when “you use combat nation that somebody.” medical testimony of the on the primarily
The relies State inflicted defendant the wounds to demonstrate that examiner it would be penetrating that numerous and Elizardo were so found that jury to have for the and “irrational” “inconceivable” injury not death. bodily but cause serious defendant meant to twice, throat was cut that Elizardo’s The State notes chest three differ- deep into her the knife so “defendant drove the vital chest and severed penetrated the ent times that it her third lungs, and fractured [sic], and artery, esophogus aorta penetrated wounds to several stab The State refers rib.” The State also relies on an into brain. skull and through the autopsy report twenty-five thirty separate that revealed stab wounds, penetrated deepest of which six inches into the body. victim’s State
The observes that after homicides took defendant pulse they both victims and determined that were dead. Moreover, according to waiting James who Gibbs in the ear returned, throat, you when he told Gibbs “I her cut worry don’t have to about her.” Gibbs ex- stated that Pitts plained that the money victims owed him said I what “[s]ee paybacks mean about is a bitch.” State The also contends that the evidence intent to kill is Ramseur. as at least if not more powerful, this case than it was in powerful, killings stabbings Ramseur manner similar to that in multiple here — —is as is threats of death. prior here there is the However, peculiarly compelling evidence intent set kill, forth, previously present Ramseur, *32 object which reveals defendant’s conscious to cause unquestionably (Footnote omitted.) of death Paul and Elizardo. Reynolds Stacy It proofs is evident that the jury overwhelmingly before the established that defendant’s assault of Elizardo was so violent that death was inevitable. The medical examiner described the “deep, penetrating injuries.” wounds as Defendant does not dispute the severity during the wounds inflicted his assault Rather, of Elizardo. defendant contends that on the basis testimony that “image,” he assaulted an in a “frenzied-type mind,” jury state of have could concluded that his intent was bodily to inflict serious injury rather than death. first arguments
We observe that the advanced respect in of the Gerald issue were those jury submitted to the support the contention guilty only that defendant was passion/provocation manslaughter. jury The heard defendant testify “image,” he knowing assaulted not Stacey it was counsel, Elizardo. summation, Defense in the jury told Reynolds when told defendant * * * * * * sleeping get has been drugs other Stacey men money enrages this so and so that he falls into what Dr. provokes Darryl Cooke called raged training reaction and he falls back on his and his instincts from Vietnam and have fatal results that we you have this case. jury was instructed passion/provocation on manslaughter. Its rejection verdict was a of defendant’s contention that he rage, killed the heat of passion, brought or reasonable provocation.
We also note that testimony that he assaulted an “image,” knowing Stacey Elizardo, it was was contradicted by defendant’s second police, statement to the which was read jury during to the the State’s case: enough He was cut but it being wasn’t severe but can cut a human and you According alive usually three minutes. That’s a they’ll stay known fact. gentlemen, going he was stabbed. All you this is on fast. This couldn’t have taken no more than When came out 15 seconds. ten, [Stacy] room, doing, jerkoff what the and on and on I you and on. said because my fuck fucking is not in hand and it went on. That’s when money my I, know, you * * * attacked her. against had [After Reynolds went wall, into And Stacy] hysterics. fallen when the went I hysterics down, that’s when up fucked [********] guess originally struggle grabbed
I it started as a because 1 her and I tried to cut her I cutting throat. told can use combat you before, you [the for] knife someone’s throat. [Emphasis added.] addition, testimony defendant’s direct confirmed that he knew Elizardo apartment because he saw her shoes coat, Reynolds said asleep. Supra she was at 590. Thus, ample had reject basis in the record to defen- dant’s “rage,” assertion that because of his he was unaware until it was too late that Elizardo was the victim his second assault. question
But issue, on the is decisive of the Gerald objective whether the assault had its bodily injury serious *33 death, the entirely evidence consists almost testimony of dem- onstrating either purpose to kill or knowledge practically that death was certain to occur. The medical exam- description iner’s of body the wounds on Elizardo’s incontrover- tibly portrayed an assault that would take the victim’s life. defendant’s second police statement to the he admitted that he attempted twice to cut pausing Elizardo’s throat. Defendant’s pulse to take the verify of the victims to their death and his 620 supplement
incriminating to James the evi- statements Gibbs demonstrating objective death and dence that defendant’s bodily injury. not serious in charged jury
If in case also had been accordance this Gerald, required have to determine it would been whether or, Elizardo, alternatively, to kill intended defendant intended bodily injury. her concur with the State’s cause serious We virtually this record it be “inconceiva- conclusion that on would that a could have concluded that defendant intended ble” Elizardo, bodily injury but not death. to cause serious (1988), expressed Bey, in v. 45 our We State N.J. belief that subject intense
in death cases an court must record to appellate penalty litigant’s at stake fact that a life is intensifies The stark scrutiny. obligation judicial of review. [Id. 92-93.] assessing Bey also in the standard for the effect We set forth in capital of error cases: guilt assessing or of a in of error in either the Thus, impact penalty phase of a shall continue to determine the basis case, reversibility we
capital of case, that in the context the entire considers, determination qualitative affecting either the verdict or the whether error was clearly capable * * * is suffi- sentence. We are satisfied its cases capital application heightened accommodate our concerns flexible to ciently responsibilities reviewing at 94-95.] death-penalty prosecutions. [Id. case, in this are After a review of the record we meticulous jury’s verdict was determination convinced that Stacey the death purposely knowingly defendant caused fully trial omission Elizardo. are satisfied that the court’s We capable affecting charge required Gerald was Moreover, that “there was jury’s verdict. we are convinced prejudice” resulting from omis- no realistic such likelihood sion, colleague proposed by concurring our a standard of review (Handler, J., concurring). matter Bey. at 116 No N.J. read, record is cannot conceive that the indulgently how we Gerald, have charged in accordance with would concluded jury, bodily injury, serious intended to cause Elizardo but not death.
IV. Penalty Guilt and Phase Issues Admissibility of Psychiatric Expert Testimony Based on Amytal
Sodium Interview Defendant During guilt phase the trial, proffered expert testimony Sadoff, of Dr. highly qualified Robert foren- psychiatrist, sic concerning defendant’s state of mind at the time of the homicides. Defense counsel advised the trial court that Dr. testimony Sadoff’s part was based in on an interview while defendant was under the influence of intravenously- administered barbiturate known as sodium amytal. The trial court conducted an hearing pursuant extensive to Evidence Rule 8 to determine the admissibility expert testimony. hearing Rule 8 testimony included from Dr. Sadoff and highly qualified two other psychiatrists, Dr. Martin Orne for Joseph State and Dr. DiGiacomofor the defendant. Follow- ing hearing, the trial court ruled that Dr. Sadoff would not permitted give expert be testimony guilt phase was based on factual conclusions derived from defendant’s during statements the sodium-amytal However, interview. court ruled that Dr. opinion Sadoff’s would be if admissible hypothetical based on facts consistent with evidence in the record. See Evid. R. 58.
During the penalty phase case, again defense counsel sought to elicit Dr. expert Sadoff’s testimony support mitigating existence of ruled, factors. The trial court as it did guilt phase, in the expert Dr. Sadoff’s testimony was also penalty phase inadmissible in the gleaned if based on facts from sodium-amytal defendant’s Although interview. the trial court suggested that Dr. Sadoff expert could base his testimony in the penalty phase already facts evidence virtue of guilt phase testimony, defense counsel advised the trial court that Dr. testify Sadoff would not because imposed by limitations the trial ruling. court’s Defendant contends before us that the trial rulings court’s in both the *35 erroneous, of requiring reversal guilt penalty phases were and as reversal of his convictions for murder well death sentence. admissibility general determine the principles
The in Roma recently scientific-type evidence were summarized of Kimmelman, 96 (1984): no v. N.J. 66 are at a criminal trial the results of scientific tests admissible New Jersey, scientific basis to produce are shown to have “sufficient when only they contribute to the reliable results and will materially uniform reasonably Hurd, (1981) (quoting v. 86 N.J. 525, 536 ascertainment of the truth.” State (1967)). Cary, need not be State v. N.J. 49 352 Scientific 343, acceptability agreement total or or universal in the a unanimous belief upon predicated methodology or that underlie of the absolute infallibility techniques, procedures * * * must demonstrat- of such evidence be the scientific evidence. Reliability general gained showing has acceptance ed the scientific technique by Johnson, 42 N.J. (1964). State v. 170-71 146, the scientific community. within that a exists does not a conclusion The fact that a of error preclude possibility Johnson noted: “Practically every scientific device is reliable. This Court neither unanimi- but unbelievers, scientific has its detractors new discovery judicial of acceptance nor universal infallibility required ty opinion showing general generally recognized Id. at 171 Once the matters.” given judicial take notice of has been courts will made, acceptability from the the results of tests instrument’s and will admit evidence reliability requiring further at 80.] [Id. instrument without proof. Thus, admissibility of derived from determining evidence the extent procedures, court must first ascertain scientific a general attained reliability procedures has which the such See community. the relevant scientific acceptance within Co., Windmere, 105 N.J. 373, International Ins. Inc. v. 377-79 acknowledged experts (1987). Testimony by qualified is an proce- general acceptance of a scientific proving method for Id. at 379-82. dure. the Rule 8 hearing substantial testimony at revealed
The concerning among experts the scientifical- agreement the three The testimony amytal. sodium acceptable induced ly uses are not sodium-amytal-induced interviews agreed that witnesses ascertaining purpose scientifically reliable for considered Sinnott, v. N.J. (1957) also State See 24 421 “truth.” that while the ‘truth (“The appears to be general consensus
623 diagnostic sera’ are they valuable as aid because tend to interviewed, subject being diminish the of the they inhibitions in any provoke certainty do not of truth-telling wise on his part.”). Dession, generally Freedman, Redlich, Donnelly See & Drug-Induced, Investigation, Revelation and Criminal (hereafter (1953) Dession, Yale Drug-Induced L.J. Revela- ) (“Thus tion results of an bare interview under the influ- not, drugs standing alone, ence of should considered be a valid facts.”). and reliable indicator 342. Id. experts expressed general agreement also that sodium- interviews, amytal-induced psychiatrists, conducted trained may diagnostically be useful component comprehen- as a of a See, Dession, psychiatric sive e.g., Drug-Induced evaluation. *36 Revelation, However, supra, 62 Yale expert L.J. at 342. concerning witnesses had different somewhat views the use of an amytal suspect’s interview induced sodium to determine a committing Ome, state of mind a criminal act. Dr. when expert, significant expressed State’s reservations about the use amytal Although sodium to determine mind. state of Dr. agreed sodium-amytal Orne that could be useful interviews diagnostically therapeutically, drug that and he testified appropriate setting was not use a forensic to determine “the extent “To that the state of of mind: mind on state making judgments historical event between two or involves patient you three different statements that the has made and using don’t true it know which is You are as a truth-tell- [sic]. ing expressed is no use for Dr. Orne device and there that.” opinion, videotape Dr. and a reports based on Sadoff s interview, sodium-amytal that relied on Dr. Sadoff interview to ascertain which of the defendant’s versions of the homicides Dr. Orne that Dr. was truthful. also noted Sadoff’s questioning during amytal of defendant interview was leading suggestive. DiGiacomo, expert,
Dr. defendant’s that a sodium- testified assessing mind, amytal could be useful in state of interview psychiatrist observed that a use the trained could interview suspect psychotic if a or suf- diagnostically to determine testified that neurosis. Dr. DiGiacomo fered from a traumatic him viodeotaped interview caused to believe his of the review “totally in he killed control” when defendant was psychosis or neurosis as helped him to rule out Stacey, and also court, During questioning by the the homicides. a reason for he conceded that found “troublesome” Dr. DiGiacomo amytal report suggesting reliance on the portion of Dr. Sadoff’s reliability” “veracity and of defen- to determine the interview statements. dant’s he had defendant twice testified that interviewed
Dr. Sadoff interrogation amytal, the conducting the with sodium before and the second competency to stand trial first time to determine He request of defendant’s trial counsel. specific at the time significant differences between explained that the occasions, on these two as well of the homicides versions experiences, combat defendant's accounts of Vietnam amytal. using sodium prompted him to recommend an interview leading ques- responses to testified that defendant’s Dr. Sadoff amytal-induced per- during the interview tions about Vietnam experienced a him defendant had not “Vietnam suaded him homicides and enabled he committed the flashback” when syndrome explanation for post-Vietnam stress as an to rule out conclu- further testified to his defendant’s actions. Dr. Sadoff interview, sion, amytal that at the time on the based causing Eeynolds was Elizardo homicides Pitts believed that *37 belief, and, enraged by defendant engage prostitution, in that acknowledged Dr. Eeynolds and Elizardo. Sadoff killed both actually opinion Eeynolds had that he had no about whether concluded, prostitution, into but based enticed Elizardo amytal, of sodium under the influence Pitts’s statements while truthful and that that had occurred was that Pitts’s belief During questioning him to commit the homicides. caused court, acknowledged from that he derived the trial Dr. Sadoff opinion that Pitts killed the sodium-amytal interview the Eeynolds that rage of Pitts’s belief in a state of because victims amytal “pimping” Stacey, denied that he had used the was but any other than to ascertain the truth facts what interview time of the Dr. Sadoff also Pitts believed at the homicides. court, acknowledged, during questioning by the trial that he opinion could render an on defendant’s state of mind without concerning if amytal reliance on the interview the critical facts question hypothetical defendant’s belief were included propounded by counsel. Rule hearing, the trial court held
At the conclusion of permitted rely on the sodium- that Dr. Sadoff would be expressing opinion amytal interview about Reynolds Stacey mind he killed Paul Elizar- state of when The court concluded that Dr. Sadoff had “relied on sodium do. veracity the defendant amytal to determine the truth or of what Acknowledging agreement among expert the three believed.”4 dissenting colleague argues is unfair and inaccurate to con “[i]t 4Our that clude, court, opinion was of the that the as did the trial that Dr. Sadoff simply Stacey engaged prostitution acted belief that was defendant with the during sodium-amytal Post at the defendant said this interview." because However, hearing appeared stages Dr. Sadoff 665-666. at several of the Rule 8 sodium-amytal acknowledge only during interview that that it was Stacey rage: expressed Elizardo in a state of his belief that he killed Well, you my I have the COURT: let me share with dilemma. THE Orne, agree impression you, that as Dr. and Dr. DiGiacomo would all drug amythal totally fact-determining sodium ineffective. [sic] agree. THE WITNESS: I would such, appear this state of the law that as THE COURT: And it would of this state. of such a test are inadmissible in the courts of law the results WITNESS: Yes. THE many impression that there are areas of THE COURT: I have the further psychia- diagnosis useful tool to a trained treatment where it is a and/or trist. THE WITNESS: Yes. impres- your testimony I have the I have listened to THE COURT: you saying you defendant was in a state are have concluded that the sion rage when he committed the offenses? WITNESS: Yes. THE Stacy rage And that that was because of his belief THE COURT: Reynolds? being pimped Paul *38 scientifically sodium-amytal are not interviews witnesses that truth, court concluded that Dr. ascertaining the trial reliable THE WITNESS: Yes. Is accurate? THE COURT: that Yes. THE WITNESS: pimping only place fact of that which is the THE COURT: And amythal testing your opinion [sic] from are the sodium basis for comes *** * scale, me, any anyone puts kind of it seems to who it on so that test, totally part say a unreliable but the least reliable would this was the it; that and as a result of how do I deal with doctor has learned the facts you to ascertain the truth? Have it is not reliable resolve that in terms of that date? truth of what was in his mind on used it to ascertain the Have I? THE WITNESS: THE COURT: Pitts. Yes. not, THE WITNESS: I have no. THE COURT: You have not? any way allege in or fashion I have not. I would not THE WITNESS: being Stacy prostitute pimping has or about that the information about any I believe is know if it’s the truth. What factual basis at all. I don’t amytal my testing, Darryl sodium believed at least under Pitts from her. that that was the reason he killed part you of the test? under the least reliable THE COURT: And related right. Yes. THE WITNESS: All Also, testimony during about indicates that his cross-examination Dr. Sadoff sodium-amytal rage interview. was based on the KASSELMAN: BY MR. Doctor, well, test, you Well, you Q. indicated how before the does— case, give opinion isn’t that correct? able to an in this weren’t A. I said— giving opinion? Q. didn’t feel comfortable You give a reasonable medical feel that I could one within A. I didn’t certainty. Right. Exactly. Q. syndrome, no opinion and I had other about the Vietnam stress A. An killed, understanding why people and I said if we do were as to these two amythal stress confirm the Viet Nam we can either [sic] the sodium emerge. something syndrome maybe And what came out else will idea or story to me to be had before which seemed that I had not necessary rage type for homicide that would be consistent with the under those circumstances. you amytal upon received some Q. the sodium test So that based you in its Vietnam and to substitute which led to eliminate information killing, place that correct? scenario for the is another it, way put yeah. guess A. I *39 proposed amytal use of the Sadoff’s interview was unreliable noted, impermissible. specifically and therefore court how- ever, permitted expert that Dr. Sadoff would be to render his if opinion hypotheti- about defendant’s state of mind based on a question cal consistent with the evidence in the case. Never- theless, attempt defendant’s counsel made no further to elicit testimony during guilt phase the Dr. Sadoff’s of the case. In guilt phase specifically the trial court did not decide question expert whether defendant’s could use the sodium- amytal diagnostically, expert opinion as a for an interview basis concerning defendant’s state of mind at the time of the homi- cides: is an The distinction from this case is that there on Dr. Sadoff’s attempt part diagnostic
to use it as a so-called tool of some sort and on the basis of that to jury concerning give the state of mind the defendant at the an opinion as to time these offenses were committed. So that raises a sub-issue whether enough using or not the test is reliable to a it to enable or allow psychiatrist give of that him to an to a which based upon employment opinion test. And I think this case doesn’t even this Court make that require general in or because the limited terms, determination broad very question any here is the use of the test Dr. Sadoff and whether he used it to involved diagnostic having he some sort of a tool no ascertain truth or whether used it as to truth or it does in those situations where because relationship falsity, appear who it does it is it is allowed because the allowed, expert psychiatrist employs of its use is not it to determine the truth and his as a result employ opinion or was ascertained because it makes no based the truth of what upon falsity given. difference to the opinion * * * strong is Dr. Sadoff used it for the this case, my very impression ascertaining the defendant is a fact and based the belief of which purpose that he has relied that fact he has formulated his which is to say upon opinion, of what the defendant on sodium to decide the truth veracity amytal believed. However, ruling implication of the trial court’s the clear diagnostically as sodium-amytal could be used that a interview dissenting colleague expert’s opinion, an as our a basis for 666, post suggests, provided at the content of the interview is the declarant’s statements.5 prove not offered to the truth of hearing the Rule 8 the trial court observed: 5At the conclusion of above, supra As noted at the conclusion of the phase again sought counsel to elicit Dr. penalty defense Sa- expert testimony support doff s on defendant’s state of mind to 2C:ll-3c(5)(a): mitigating “The factor set forth N.J.S.A. of extreme mental or emo- defendant was under influence prose- tional disturbance insufficient to constitute a defense to ruled, guilt phase, cution.” The trial court as it did rely sodium-amytal Dr. Sadoff could not on interview express opinion defendant’s state of mind about based the time of the homicides. The defendant’s beliefs at court however, observed, guilt had that defendant testified *40 phase very that Dr. learned of about the same “beliefs” Sadoff Hence, emphasized during amytal the interview. the court in testify Dr. Sadoff could about defendant’s state of mind the penalty phase testimony, of defendant’s direct on basis but opinion could not his on the truthfulness of statements base during sodium-amytal made interview. The specifically by defense counsel if his trial court was asked ruling expert offering any precluded defendant’s from state-of- opinion sodium-amytal mind based on the interview. re- sponse, acknowledged diagnostic trial court value sodium-amytal declined to rule “in a on interviews but vacuum” getting from Dr. That does not mean to that the defense is foreclosed say evidence, in and I believe that it would be Sadoffs opinion very appropri- give assuming one, facts, ate to Dr. Sadoff the state of it's hypothetical give and let him based on those facts. evidence, based on opinion jury Now, in that case if the believes the facts can evaluate his they which are the basis of his and if disbelieve the facts opinion they opinion, give weight are to it what or believe it then credibility they they position deserves. and to hand, On the other if the defendant should decide to decide testify thinking jury else the basis of his was at the tell the and what everyone time, course, then of Dr. Sadoff would be at to take that informa- liberty underlying give and The then is tion in the form of facts opinion. underlying jurors to facts, do, able to evaluate the are able without testing
being a sodium which asked to evaluate amytal procedure appar- evaluating. agree even the can't experts ently testimony.6 Defense counsel did admissibility of such case. testify penalty phase call Dr. Sadoff holding the trial court’s fully in accord with We are using sodium-amytal-in Dr. from precluded Sadoff provide expert opinion testimo of defendant interview duced guilt phase of the trial. state of mind ny on defendant’s Rule Dr. trial court’s assessment of Sadoff’s find the We Although accurate. Dr. Sadoff testimony perceptive and be diagnostically to amytal interview used defendant’s may have on the inter- extent, that he relied it is uncontrovertible some colloquy point follows: 6The on this ascertaining amytal My ruling as a truth is unreliable now is sodium unanimously profession courts psychiatric said it and the device. The any unanimously, whether it’s it doesn’t make difference it have said guilt phase, unreliabili- penalty phase unreliable and it is its it is still ty it inadmissible. which makes say that, may nothing. Beyond Sadoff come in and whatever I Dr. rule to, you opinion, have to do you it seems to me all want his he and if wants amytal got because under the sodium that he feed him the information very be a your Court and it would to it in this client has testified now opinion. proper basis for Dr. Sadoff’s anything unclear? I left Have about, thing only bit unclear I am the least MR. GOLDSTEIN: obtuse, being maybe but the long day, somewhat maybe, I am it’s been a about, indicating you Sadoff that Dr. only thing are a little bit unclear I am *41 sodium jury under the may that he believes him on direct not tell jury amytal, may in fact tell the amytal but he of the sodium because opinion? expressing amytal gave interview without sodium he him a probative would that have? value THE COURT: What you give Well, thing you say, "Did when the same GOLDSTEIN: MR. Multiphasic'Personality Test?” him the Minnesota recog- Personality Multiphasic is a well Minnesota THE COURT: The accepted psychiatric test. nized not be Sadoff would I am correct that Dr. So then GOLDSTEIN: MR. amytal? the sodium allowed to mention No, saying in what I don’t know that because I am THE COURT: diagnostic aid to say It does have some want to it. he would context they days don’t know whether are. I psychiatrists: two of what we heard rulings going make I am not to any in this case and are relevant of them a vacuum. 630
view ascertain the truth of defendant’s beliefs about Thus, reasons he had committed the homicides. state-of-mind Sadoff, testimony by Dr. based on defendant’s “beliefs” ex- interview, pressed during amytal exposed would have expert opinion part derived at least from a procedure general scientific that has not attained acceptance in community. the scientific
On two occasions that this Court has considered the concluded, question, we have based on the then-existing state of knowledge, testimony scientific from derived a sodium amytal-induced prove interview is inadmissible to the truth of Levitt, the facts asserted. See State v. 266, (1961); N.J. 36 275 Sinnott, supra, State v. N.J. at 421-23. Our rule is consist 24 ent expressed by with the views other courts that have ad Solomon, dressed the issue. See United States v. 753 F. 2d Swanson, 1522, (9th Cir.1985); United v. 1525-26 States 572 523, (5th Cir.), denied, cert. 849, F.2d 527-28 U.S. S.Ct. 439 99 152, Chapa Chapa, 58 L.Ed.2d 152 (1978); 969, v. 491 2dSo. Thomas, v. (Ala.Civ.App.1986); 158, 970-71 State Ariz. 79 285 612, denied, cert. (Sup.Ct.1955), 950, P.2d 613-14 U.S. 350 76 State, 326, S.Ct. 100 L.Ed. 828 (1956); Fetters v. 796, 436 A .2d (Sup.Ct.Del.1981); Harper State, v. 519, 800 Ga. S.E.2d 249 292 389, Linn, State v. (Sup.Ct.Ga.1982); 430, 395-96 Idaho 93 462 Rosencrantz, 729, v. (Sup.Ct.1969); P.2d State Idaho 732 110 124, Foerstel, 93, (Idaho App.1986); v. 714 P.2d 99 State 674 583, Delk, S.W.2d State v. (Mo.App.1984); 593-94 692 S.W.2d State, 431, (Tenn.Cr.App.1985); 707, 439 Cain v. 2d 549 S.W. (Texas denied, 845, cert. Cr.App.), 711-12 U.S. S.Ct. 434 98 (1977). expert testimony 54 L.Ed.2d adduced at the Rule hearing indicated that the scientific community contin testimony amytal ues to view induced sodium as unreliable Thus, ruling ascertain truth. the trial excluding court’s Dr. testimony guilt phase Sadoff’s in the was consistent with our precedents, weight authority throughout the coun try, contemporary and also with knowledge scientific as re expert testimony. Moreover, flected the trial court
631 expert acknowledged Dr. could furnish properly Sadoff question, supported by other hypothetical on a testimony based record, to Dr. forth the facts revealed in the set evidence sodium-amytal find no error during the interview. We Sadoff disposition of this issue. trial court’s in the ruling that in the trial court’s Nor do we find error testimony in the furnishing expert Dr. Sadoff from precluded from factual conclusions derived penalty phase that relied on connection, first In this we ob sodium-amytal interview. mitigating that the factor jury that the determined serve directed, testimony N.J.S.A. 2C:11- Dr. Sadoff’s which acknowl 3c(5)(a),7 respect to homicides. We existed with both course, weight ascribed to that edge, by the exclusion of may affected mitigating factor have been testimony. Dr. Sadoff’s ruling concerning trial court’s that the
Defendant contends error. Defen- penalty phase was testimony in the Dr. Sadoff’s (1984), Davis, v. State v. 96 N.J. dant relies State (Law Div.1983), support of his Timmons, N.J.Super. 141 applied stringent should be standard that a much less assertion penalty phase of by in the proffered a defendant to evidence admissibility during the governs capital case than that which guilt phase. legislature has trial of this case note that since the
We contention, although not of defendant’s dealt the essence case, amending Capital application in this specific its of admis- tolerant standard prescribe a more Punishment Act support one or defendant to offered sibility for evidence 2C:ll-3(c)(2)(b) pro- now mitigating factors. N.J.S.A. more vides: 2C:ll-3c(5)(a) as follows: “The mitigating factor set forth in N.J.S.A. 7The distur- or emotional of extreme mental was under the influence prosecution." constitute a defense bance insufficient to
632 (b) The evidence to of offered the State establish of the admissibility by any aggravating governed governing factors shall be the rules the admission of by regard evidence offer, at criminal trials. defendant without to the may governing rules trials, the admission evidence at criminal reliable evidence mitigating relevant to of the factors. If the defendant evidence in any produces mitigation governing not the which be admissible under rules would admission of evidence at criminal the State rebut that evidence trials, may regard governing
without
to the rules
the admission of evidence at criminal
(approved
1985).]
trials.
c. 178
and effective
[¿.1985,
10,
June
Although
provisions
literally apply
we need
of N.J.
2C:ll-3(c)(2)(b)
us,8
S.A.
to the issue
before
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amendatory provision
holding
was foreshadowed
our
Davis, supra,
State v.
Had the state the record trial court opportunity testify to offer Dr. Sadoff the based on defen testimony, application principles guilt-phase dant’s of the set suggested permit forth in Davis would have that Dr. Sadoff be testify opinion on ted to about his based defendant’s beliefs event, expressed amytal in the In that the trial interview. compelled charge jury concerning court would have been testifying unreliability subject of facts learned from a amytal, opinion under the influence of sodium and Dr. Sadoff’s challenged could have been on cross-examination rebut penalty-phase evidence to testimony. tal Total exclusion support mitigating only factor should occur in those circum admission, in a trial court is convinced that its stances which cross-examination, balancing taking into account the effects instructions, testimony, frustrate rebuttal and curative would society’s according a fair trial to rather than advance interest capital defendant.
V. Penalty Phase Issues 2C:ll-3c(4)(c). Aggravating A. Factor the trial of this case occurred before our decisions Since 123, Ramseur, supra, Biegen- v. v. N.J. State State court, wald, charging jury supra, 106 the trial N.J. c(4)(c),9 not concerning aggravating factor did have benefit c(4)(c) aggravating charge factor was as 9The trial court’s to the follows: aggravating just I have mentioned in Insofar as the first factor which murders, although every may murder be connection with each vile, inhuman, that there is an viewed as horrible or this does mean every necessary aggravating factor in case of murder. What is automatic prove on the victim is that the State that the attack the defendant Pitts *46 factor. See narrowing aggravating of our construction of that Ramseur, supra, State v. 106 N.J. at 198-211. noted in We Ramseur c(4)(c) introductory language (“[t]he the of factor outrageously wantonly vile, or murder was or inhu- horrible * * man”), beyond anyone’s ability “is indefinite remedy Id. at 199. Thus, application we determined that in the of this aggravating factor “the part provision first is rendered nugatory. aggravating The resultant construction is that torture, depravity factor exists when the murder ‘involved ” mind, Ibid. We also aggravated battery or an to the victim.’ Ramseur adopted c(4)(c) narrowing construction order standards, satisfy constitutional and we concluded that state of mind was the critical element: legislative We are convinced that the essence of the concern is the defen- legislature dant’s state of mind. do not We believe that intended to distinguish between two murderers each of whom intended to inflict immediate suffering death the victim without additional when one upon any whatsoever, long and the other lives for a dies of time immediately victim and period experi- excruciating ences That event alone would be as an pain. capricious perceived imposing insufficient basis on which to inflict death on that defendant while on the other. Our of criminal laws is imprisonment system predicated usually on based on the defendant’s intent. our imposition punishment Indeed, ranking degree Code’s of crimes those crimes committed with inten- places highest degree tional conduct as the for which the defendant is crime, most Legisla- severely concern, punished. Society’s community’s concern, ture’s who intend to inflict is to most those concern, punish harshly harm, pain, suffering intending N.J. addition to death. [106 207-08.] —in We also set forth in Ramseur the essential elements of a proper charge jury c(4)(c): to a on factor depending charged Therefore, should facts, be —without quoting aggravating the statute —that this factor exists if the murder involved aggravated or an
torture, mind, to the depravity victim. Torture or battery aggravated to the victim shall be found if the battery intended to psychological suffering cause, and did fact severe or cause, physical pain to the victim to the victim’s prior death, measured either “severity” considering indicating are involved either torture or conduct you savagely outrageously mind or that the attack was so depraved brutal or adjectives cruel and violent that the vile or horrible or inhuman wantonly justified. are You must be satisfied that such conduct was present you must be satisfied a reasonable doubt. beyond *47 of the or the duration of the or a combination of both. pain, intensity pain, revenge, greed, the murder was not the or another of Where product envy, served no for those emotions associated with ordinarily murder, purpose killing, the court shall instruct the on the defendant beyond pleasure meaning in context. For the defendant killed who depravity specific just enjoyment of because the victim to be in the or it, area, for the happened just must no reason at to be able to reserve its most extreme all, kill, society (footnotes omitted).] N.J. at 211 sanction. [106 c(4)(c) Accordingly, defendant contends that the trial court’s error, charge acknowledges, and the as indeed it State must, charge holding did not conform to our that the Rams- ground This constitutes an additional for reversal of eur. death sentence. Although argument agreed oral defense counsel c(4)(c) aggravating factor could be the State’s assertion event, remand, again jury in the submitted to the State sought impose penalty, we caution the trial the death would magnitude of that counsel’s concession court that on issue Thus, if responsibilities. the trial court of its could not relieve remand, indepen presented on the trial court must the issue is holding in proofs, in the context of our dently assess the State’s Ramseur, in has adduced order determine whether State defendant intended to and did inflict sufficient evidence that her physical psychological pain on Elizardo before severe support jury finding that this factor exists. death to Autopsy Photographs in Admissibility B. of Crime Scene and Penalty Phase. trial, photographs
During guilt phase of the three were objection. photographs de- admitted evidence without picted Reynolds’ apartment, the stairwell outside the interior of the bodies. On apartment, and the location victims’ objection, excluded three other defense counsel’s the trial court under Rule and also photographs of the victims Evidence ground autopsy photographs on the same a series of excluded victims. During penalty phase case, of the sought the State again to introduce in evidence the crime autopsy photo- scene and graphs that had guilt phase. been excluded Defense objected, contending counsel close-up photo- color graphs of the bloodstained victims close-up autopsy and the photographs depicting the location of the stab wounds were highly inflammatory and so potentially prejudicial as to out- weigh any relevance photographs any issue in the *48 penalty phase. court, applying above, The trial as noted supra 635, pre-Ramseur at interpretation of aggravating factor c(4)(c),ruled the photographs to be admissible: First with generally to the three respect 12 and and already marked, S-ll, 16, with to all of it them, seems to me where the respect burden of the State is to killing outrageously that the or prove vile, horrible or wantonly inhuman, involving aggravated an to the victim or battery that it torture, would be graphically that the which foolhardy say demonstrate the pictures extent of the with to the especially respect demonstrate the autopsy pictures wounds — extent of the the nature of the wounds, wounds and on what of the parts body indicating again were the
they inflicted, the pictures crime scene which demon- give strate, at the violence inferentially least, which must have been involved to rise to that highly scene are all particular relevant, in the very probative penalty portion. determining I have looked at them with a view to whether or not value is probative overcome to invoke on by any potential the passion part jury prejudice jury the or on the as a result of part and I passion, don’t think do. they noted, As the interpretation c(4)(c)adopted of factor in Ramseur, supra, 123, State v. 106 N.J. filed after the trial in case, focuses on the defendant’s intention to inflict severe physical psychological pain death, prior 635-637, supra at concerning issue which crime scene autopsy photo graphs limited, only would have any, Moreover, if relevance. the extent to which the pain victims endured before death subject would abe more appropriately by expert addressed medical testimony than photographs. Although general as a rule admissibility the of photographs of a crime victim rests in discretion, the trial court’s Thompson, 396, State v. 59 N.J. (1971), the need to balance the ostensible relevance of such especially against jury prejudice is the likelihood of evidence It capital case. is evident penalty phase in the critical penalty phase for the in the photographs inadmissible the were remand, event, In the by the trial court. purposes stated aggra- support offered to photographs all of are some or these Ramseur,10 interpreted in the trial court vating c(4)(c)as factor in admissibility the context of their carefully evaluate should by the proof, adduced other evidence the State’s burden 4. State, the Rule provisions Evidence Mitigating Weighing Aggravating and Factors. C. 585-586, above, the trial court’s supra As at noted holding our v. charge comply not State jury did jury find that that the must supra, 106 N.J. Biegenwald, outweigh mitigating beyond factors aggravating factors impose the for the trial court to a reasonable order doubt statutory provisions then with the death sentence. Consistent each effect, jury that unless the trial court instructed proved factor aggravating is outweighed by mitigating factors, Similarly, verdict will be death. sentence relating Stacey murder of Elizardo reflected to the sheet aggravating factor was jury’s determination that sole *49 by mitigating The State concedes that outweighed factors. the the specific finding that jury charge and the lack of a the outweighs mitigating beyond a factors aggravating factor the vacated. requires that the death sentence be reasonable doubt VI. Defendant’s sen- judgments conviction are affirmed. of Stacey murder Elizardo is reversed to death for the of
tence to Law Division for resentenc- and the matter is remanded the thirty- imprisonment to with ing. sentence life Defendant’s trial, the or on whether evidence in first 10We intimate no view on c(4)(c) jury in the to factor to the was or be sufficient submit remand, will of a phase. event retrial of penalty years parole ineligibility Reynolds for the murder of Paul is affirmed, as are the the remaining concurrent sentences for unmerged counts the indictment.
HANDLER, J., dissenting.
Defendant, Pitts, Darryl prosecuted capital was under penalty Reynolds murder-death statute for the murders of Paul and Stacey Elizardo. was Defendant convicted both murders and Elizardo; sentenced death for the murder of Stacey he imprisonment sentenced life thirty-years parole with ineligibility Reynolds. for the murder of Paul He was also tried and convicted of several other related offenses. The Court affirms for convictions murder and the related of- fenses, reversing while remanding the death sentence and matter to the trial court new sentencing proceeding. for a I convictions, and, would therefore, reverse defendant’s murder dissent judgment. from Court’s initially
I my capital note belief continuing that our murder- enacted, death statute penalty interpreted, applied vio- lates state-constitutional and fundamental-fairness doctrines. I position adhere to in light continuing development this capital-murder jurisprudence, because, it, as I see the flaws in our However, state’s statute are ignored. too severe to be it necessary is not here either reiterate explain or further these grounds See, disagreement. Hunt, e.g., State v. 115 N.J. 330, (1989) (Handler, J., dissenting).
Nevertheless, in case, this am profound disagreement I the resolution of two issues One Court. issue involves give the conceded failure trial court to the jury concerning non-capital instruction offense of serious-bod- murder, is, ily-injury involving bodily murder serious injury inflicted without homicidal or knowledge. intent Indisputably, charge supported is by a rational basis in the evidence and clearly Gerald, mandated State v. 113 N.J. 69-91 *50 (1988). The other issue from arises the exclusion the trial
641 concerning competent expert testimony important court of and mind, exclusionary ruling that is of the defendant’s state only respect guilt phase to the not affirmed this Court ruling that, phase, presum- a penalty the trial also the of but impose to the death ably, apply in the defendant’s retrial will penalty. addition, note, rejects conten-
I in the Court also defendant’s that, light in later-decided of particularly case State tion (1987), Bowens, charge he was entitled a v. 108 N.J. I aggravated manslaughter. at 603-614. am of the view Ante manslaugh- charge aggravated to a that defendant is entitled Stacey murder Elizardo. The line respect ter with to the murder, murder, serious-bodily-injury knowing between manslaughter fragile is fine and aggravated simply too among withholding from a the choice these several justify support any one of light offenses in of evidence that would to an I this conclusion—that defendant entitled them. reach light in of evi- aggravated manslaughter charge particularly — support charge rational provides dence that basis decision as well serious-bodily-injury murder under our Gerald support imperfect claim of as the evidence in at capacity. diminished See discussion self-defense and infra expressed are sub- My reasons for these conclusions 641-650. Rose, stantially in 112 N.J. 552-67 my dissent State v. Hunt, (1988), my supra, as later v. dissent State well 403-411, here. reiterated N.J. will be
I. we rendered our decision State This case was tried before Hence, prosecution anticipa- in this no one involved v. Gerald. may of the evidence that the defendant significance ted the bodily intending to inflict serious have committed a homicide in death or certain injury that resulted but without intent *51 knowledge explains in fact death would occur. Gerald the significance of such held evidence. We there that a defendant knowingly causing injury who is convicted of or “serious purposely bodily resulting (2), 2C:ll-3(a)(l) in death” under N.J.S.A. or either of them —as knowingly causing to one who is convicted of or death under opposed purposely subjected
those same
not be
death
to the
N.J. at
provisions may
penalty.
[113
—
69.]
charging
in
jury
In
the
this case
having
without
the benefit
Gerald,
holding
in
the
require
jury
our
trial court did not
the
specifically
to determine
whether
purposely
defendant
or know-
ingly
victims, or,
caused the death of the
alternatively, whether
purposely
defendant
knowingly
injury
or
serious bodily
caused
happened
in
result
their deaths.
Court
The
now rules that the
charge
trial court’s omission to
jury
the
consequence
mandated
Gerald is of no
with
respect to
Reyn-
defendant’s conviction for
murder
the
of Paul
jury
impose
olds because the
did not
death penalty.
Ante
Hence,
it
exposed
615.
concludes that
was
defendant
same sentence that
imposed
could have been
were he to have
non-capital
disagree
been convicted of
murder.
Ibid.
I
with
essentially
this determination
expressed my
for the reasons
dissenting opinion
Hunt, supra,
in State v.
The deals more with conviction for the Elizardo, Stacey murder of for which defendant was sentenced- poses to death. The Court the issue as follows: whether the concerning evidence the record clearly that homicide so purposely established that knowingly defendant or her caused death that the charge trial court’s omission of the Gerald capable affecting verdict, not jury’s 615; ante at jury’s effectively “whether verdict constituted a determina- purposely knowingly tion that defendant caused the victim’s death.” Ante at 615. Court then finds that the record clearly established and the verdict “effectively constituted determination that purposely or know- ingly Stacey caused the death of Elizardo.” Ante at 619-620. concludes, It accordingly, that the omission of the Gerald affecting jury’s verdict.” Ante charge capable “was reasoning and conclusion. disagree I at 620. determining Gerald, posited the standard for when we bodily injury must result an alternative infliction serious murder: charge to intentional foregoing jury in did not which of the offenses this case specify Because *52 ' murder) and because (capital defendant was convicted of, murder or non-capital jury the this the could have determined that record, it is on possible, knowledge injury or to cause serious but bodily had the only purpose judgment the of conviction ... must be reversed we conclude that death, at for retrial. 69-70.] cause remanded N.J. [113 and the Nevertheless, this standard. grudgingly follows Court acknowledges charge, encompassing as that the Gerald while it offense,1 supported murder need be it a lesser-included does evidence, Crisantos, in v. 102 only a the State by rational basis 265, (1986), teachings of ignores it the essential Ger- N.J. 276 hypothesizes weight a ald, jury the as It as well Crisantos. serious-bodily- supporting have ascribed to evidence would supporting purposeful or to the evidence injury murder relative its then is dictated knowing murder. The Court’s conclusion weight evidence it comparative of the own assessment ap- offenses. Such an respectively to the alternative ascribes Gerald, holding in only contrary to but proach is not our Hunt, jury. of 115 N.J. at essentially usurps the function (Handler, J., dissenting). 405 Rose, supra, 112 the defendant was In N.J. State v. death for the fatal capital murder and sentenced to convicted alleged shooting police appeal, officer. On the defendant a charge jury trial court’s refusal to as reversible error the the defen- aggravated manslaughter. There evidence that was range very in the from close shot the officer stomach dant witnessed, and defen- shotgun; shooting was a sawed-off serious-bodily-injury murder, committed either crime of purposefully 1The purposeful/knowing knowingly, mur offense of capital or is a lesser-included in that the defendant contemplated der it differs from latter only because 2C:l-8(d)(3). than death. less result harm N.J.S.A. serious dant had confessed it. A majority of this Court relied on the weight of firing this evidence to conclude that defendant’s shotgun accidental, was intentional rather than and thus allowing jury found no rational aggra- basis to consider manslaughter possible vated verdict. at Id. 482-83. disagreed position Two members of the Court with this because there also evidence the record that could allow a jury to conclude that the defendant had shot the officer reflex- panic. view, ively out of implicate their could requisite aggravated state mind for manslaughter: reckless- manifesting ness extreme indifference human life. Id. (Wilentz, C.J., concurring part dissenting part); (Handler, J., Thus, dissenting). id. at 556-60 both concluded permitted that the should have been to decide whether panic caused him to act recklessly. Subject particular dispute in Rose was the Court’s novel approach question to the of whether a rational basis existed for charging the aggravated lesser-included offense manslaugh- pointed dissent, ter. As I out in approach Court’s constitut- *53 law, ed according a new formulation the to which a “rational is basis not only established unless a defendant has pointed not support to evidence that could charge, a conviction the lesser also, quite this, but apart explained and why from jury the should have credited that assailing evidence the strength of greater charge.” 560; Hunt, the evidence of the at Id. 115N.J. (Handler, J., at dissenting). 405 required Never before had we a defendant to establish a rational for an basis instruction on a lesser disproving offense greater charge the case for the in to weight jury order increase the give a to would the lesser charge. required Nor have we hypothesize courts to the weight jury a would have supporting ascribed the evidence conviction of charge. the lesser the degree Because to which a jury weigh believe inscrutable, will and evidence essentially is question weight the of what supporting to afford evidence charge previously lesser had exclusively been left jury. the 560; Hunt, (Handler, Id. 112 at J., N.J. 115 at N.J. dissenting). I therefore in concluded Rose that to the extent weight of to assess the required courts majority’s approach the weight of the against lesser offense evidence of the exists to a rational basis to determine whether greater order precedent, impos- offense, departs “it from all charge the lesser standard, jury.” usurps the function of an unrealistic es J., (Handler, 560; Hunt, 115 at 405 N.J. 112 N.J. Id. dissenting). engaged process in a has the Court too in this case
So weight jury requires hypothesize a court to review supporting the conviction to the evidence have ascribed would indeed, given. if, charge had been charge the lesser weight essentially compares the approach The Court’s crime, mur- serious-bodily-injury the lesser supporting evidence knowing offense, purposeful or der, greater that of the jury’s most murder, which was in order to determine J., (Handler, Hunt, 115 at 405-406 N.J. probable verdict. is whether “it Gerald dissenting). But the standard ” that the defendant’s determined could have possible injury and not bodily cause serious merely to intention was death. in terms the evidence does not deal with
The Court evidence, weight of the Rather it assesses possibilities. accepts the State’s weight, simply and, determining its it “no it, surprisingly, with evidence, leaving thus view Stacey knowingly killed purposely that defendant doubt” approach is the of this 617. Illustrative Elizardo. Ante at examiner testimony of the medical reference to Court’s depth of the wounds concerning the number Elizardo, that it would be it concludes from which inflicted on that defendant jury to have found for the “inconceivable” *54 at not death. Ante bodily injury but serious meant to cause has the Court by this conclusion assumed that It must be 620. possible” Gerald, “it is found, satisfy that must to [not] as it any jury for the to have determined from evidence that defen- bodily injury dant meant to cause serious but not death. dispute severity Defendant does not the wounds inflict- Elizardo; during evidence, ed his assault of or that there is evidence, prove indeed abundant sufficient to murder. The point obligated that is not disprove is defendant to or overcome Eather, it identify that evidence. suffices to other evidence and to that this evidence itself “possible” show renders it jury to have concluded that the defendant intended to inflict bodily injury, serious not death. Thus,
And there other was evidence. on direct examination defendant stated:
The actual assault was like almost an instantaneous like reflex for me have to doing assaulted him. I Paul assaulted while I knife; so, was from back me it just was like a was, state it frenzied-type mind, ... was time____ image at that Further, on cross-examination defendant stated: jury I thought want I to believe that didn’t have the intentional to harm
these people. Moreover, Dr. Cooke testified that defendant told him he was initially unaware that he assaulting Stacey was Elizardo: He also then tells me that [defendant, Pitts] out the corner of his he eye image, saw what some times he as an described as a [sic] didn’t know person, feeling who was, it he didn’t know if a it was male had says, female, but feeling much like the that he had he in I very Vietnam, when have to Iwin, things have to am survive, I under attack, that nature. great I went into this with him is detail; not a flashback into any reliving is not like he specific incident, incident Vietnam. I specific saying saying, general feeling
am not that. What I am he had the under this just having stressful situation he had had at times in Vietnam win, to having having strike survive, out until there was no more motion around him. He said that he afterwards realized that only was Stacey. Contrary Court, conclusion reached in the absence of charge, a correct totally Gerald one cannot be convinced jury that the convicting verdict Pitts of the murder of Stacey necessarily Elizardo reflected a determination only that the purposely or knowingly caused merely death and did not intend to bodily injury cause serious that resulted in Although weight death. of the evidence *55 knowingly or caused the death of purposely that defendant extinguish great, it did not evidence to Stacey Elizardo was suggesting that defendant struck contrary, namely, evidence blindly “image” “frenzied-type an in a state of mind” out intending only generalized harm. It is thus conceivable that a of non- charged jury would have convicted defendant properly capital murder. Rose, Court, seems to as it did to some extent buttress referring of the record to defendant’s
its evaluation own relies in strategy support its conclusions. The Court trial opening jury statement to the con- part on defense counsel’s involving rage; it also cerning state of mind as comparable counsel made statements notes that defense Further, emphasizes jury that the was instruct- it summation. manslaughter. The thus passion/provocation Court ed on strategy suggest trial itself somehow seems to that defendant’s or, argument of a engenders estoppel an or waiver Gerald inten- manslaughter strategy is consistent with an because seen, clairvoy- by hindsight, as a kind of killing, it can tional be non-capital mur- acquiescence in fortuitous omission ant However, pres- counsel was not from the case. defense der Gerald, prior to cient; unfairly ignores the fact that the Court to the defendant as non-capital murder was not available theory present jury to the plausible alternative for a basis impossible strategy when it was trial was devised and that his applicable or could be principle existed to know that Gerald case. to the murder, jury’s verdict of also concludes that the
The Court rejection of defendant’s con- manslaughter, than was a rather brought rage passion killed in the heat of tention that he 618-619. Because the provocation. Ante at by reasonable manslaughter by is urges rejection of that the Court support that would a view of the evidence inconsistent with murder, reasoning implicit in the Court’s serious-bodily-injury manslaughter— rejection of that this verdict—the belief any specifically rejection evidence must included have “rage.” The Court seems also then to the rejec- assume that “rage” tion negate a state of serves mind that would only inflicting bodily constitute intent to harm serious injury. However, the manslaughter by consideration of *56 jury did not to discretely invite it differentiate and consider rage apart Hence, evidence of from of provocation. that rejection manslaughter of signify does not necessarily its disbe- Moreover, rage. lief of the evidence the jury’s verdict rejecting manslaughter predicated was on an unfair choice: manslaughter; that intentional murder and between the choice augmented alternative, was not namely, non-capital another Thus, jury’s rejecting murder. verdict manslaughter may theory not presented be inconsistent with the the jury— —not that in “frenzied-type defendant killed state of mind” that charge could a correct reduce under the homicide to non-inten- tional murder. (I), (1988), v. 112 Bey State N.J. 93-95 we indicated
that
assessing
impact
guilt
“in
of error in either the
or
penalty phase
capital case,
of a
we shall continue to determine
reversibility
qualitative
on the basis of a
determination that
considers,
case,
in the context of the entire
whether the error
clearly capable
affecting
was
either the verdict or the
standard,
Applying
professes
sentence.”
this
the Court
to have
made
case,
a meticulous review of the
convincing
record in
jury’s
itself that the
verdict was determination that defendant
purposely
knowingly
Stacey
caused
death of
Elizardo. It
appears
Court,
thus
in
the view of the
the trial court’s
charge required by
omission of the
our
decision Gerald was
capable
affecting
jury’s
verdict. The Court also
concludes, under
review,
an alternative enhanced standard of
prejudice”
“there
no realistic likelihood of
resulting
from
Bey (I),
such
(Handler,
omission. State v.
For Court effect defines question the decisive as a factual one: whether assault had objective bodily injury its serious or death. at 619. Ante That, suggest, question jury I that the is the decisive should not, however, ques- It consider and determine. the decisive question tion for this Court. Rather that is whether there was a rational in the evidence to establish such an offense and basis possible jury for the whether it was make such a determina- Hence, recapitulation tion. the Court’s own of the evidence and determination, consisting entirely its own factual of the evi- demonstrating purpose either dence to kill or his occur, knowledge practically that death was certain to cannot dispositive ordinary-murder be of defendant’s entitlement to the (Handler, J., Hunt, charge. dissenting). at 405-407 N.J. may saying truly unimportant that it is that the Court be jury range charges in this case did not consider the full evidence, relating including to offenses available under the approach ordinary murder. Such an trivializes the role. very guarantee core We have held that at the of a fair judicial obligation *57 trial a criminal case is the assure jury’s impartial solely are on the evi- deliberations based proper adequate dence in and instructions. and accordance with (1979). Simon, 191, v. 79 206 When a lesser-included State N.J. defendant, charge requested by is the trial court is offense in obligated to determine if there exists a rational basis support the included offense. v. evidence that could State Crisantos, Indeed, supra, paramount 102 at 278. “so is N.J. jury in duty to insure a fair trial that a must deliberate such instruc- accordance correct instructions even when Grunow, requested by 102 tions are not counsel.” State v. N.J. 239, (1988) 133, (1986); Moore, 288 see v. 113 N.J. State (trial charge capacity diminished jury court’s failure to on although charge request- constitutes error was never reversible counsel). by obligation ed defense The court has an to see to it given all of jury, representative public, that the as the of the is might possible reasonably of the offenses that the facts and all Choice, 98 found from such facts.” State v. N.J. be (1985). 298-99 done, simply,
What the Court has act as a is to thirteenth juror, weighing the evidence with its thumb on own the scale. Court, appellate from promontory, effectively its has co- opted recapitulation jury. Its of the reads like evidence summation; prosecutor’s conclusion, its jury verdict. What is missing judicial from in genuine this exercise is a review and cogent rebuttal to the irrefutable facts: was a there rational jury murder, basis in the for the non-capital evidence to find it possible jury evidence, was credit that the Gerald charge given, and jury not no opportunity had consider such in charge. evidence terms of such a omissions,
Measured these jury’s whether the ultimate would or same, determination would not have been the appellate sound review must record the prejudice fundamental jury’s affected the deliberations. The was denied the opportunity engage in involving deliberations all the full evidence in complete accordance with instructions. This cannot passed be off capital-murder prosecution. as harmless error in a
II. The Court concludes that the properly trial court excluded expert testimony part based results of a sodium amytal court, examination of the trial defendant. The and now Court, this purpose misunderstand the nature the evi- offered, dence misperceive posed by the issue this critical evidence, misapply relevant governing standards the admis- sibility expert evidence, in my view, evidence. This should have been held guilt phase admissible prosecution. More importantly, its exclusion penalty phase from the particularly defendant’s trial light indefensible *58 unique portentous significance sentencing that a trial holds in death-penalty prosecutions. subject exclusionary of the trial court’s ruling was the
testimony consisting expert opinion of Dr. Robert Sadoff relating to his examination of the defendant with the use of amytal. sodium This substance is a barbiturate with some utility as a relaxant that anxiety blocks psychiatrists and allows engaging in narcoanalysis call repressed forth suppressed feelings memories or that are otherwise difficult to reach. examination, From this Dr. Sadoff elicited information concern- ing defendant’s state of mind at the time of the murders indicating that defendant Reynolds believed that Paul was causing Stacy Elizardo engage prostitution. Dr. Sadoff opinion formed the that this belief of the engendered a state rage in which he murdered his victims.
This evidence was excluded the trial court. The Court predicates now approval its of the trial court’s exclusion of this evidence on two factors: the use amytal of the sodium inter- view as a means to ascertain the “truth” of defendant’s belief killing or motive victim, and the trial court’s offer to expert opinion allow testimony long from Dr. Sadoff so as it hypothetical was based on a question consistent evi- dence in the case any gleaned exclusive of information from the sodium amytal interview. evidence,
This relating as it does to the defendant’s state of mind, goes very to the prosecution core of both the and the defense of my opinion, error, this case. if its exclusion is error, then the inescapably, gravely prejudicial. For this reason, assessment of exclusionary ruling the court’s entails an analysis (a) extended involving testimony review of the actual concerning reliability amytal of the sodium methodology as aspect psychiatric evidence, (b) the actual use of this methodology by expert case, (c) in this the standards that govern use, (d) should the admissibility of its a review of the ruling, (e) trial prejudicial court’s effect of the exclu- sionary ruling. Finally, importantly, and most the conclusions drawn from analysis must be reconsidered in the context of the trial court’s exclusion of this sentencing evidence from the phase of the trial.
A. investigating patient’s potency as a means of a Because of its agreed mind, testifying experts legitimacy on the of all of the diagnostic purposes. using amytal for There was sodium patients in amytal sodium could assist agreement also that helping “get or them to to” memories reliving repressed events feelings they are unable to articulate. Fur- or otherwise ther, gleaned experts felt that the information two of the three interviews, infor- conjunction with other available from such mation, determining provide serve to a reliable basis for could historical state of mind. the results of a sodium experts further concurred that scientifically
amytal are not considered reliable interview Nevertheless, ascertaining as such. purpose of truth DiGiacomo,a amytal results of sodium are useful. Dr. defense expert, amytal stated that even if an interviewee was withhold- truth, ing the manner in which the interviewee defended some provide insight psy- the interviewee’s information would about inform the chological defense mechanisms. Such clues could charged emotionally highly of issues are or interviewer what interviewee; thus, although such interviews difficult for the se, might they provide insight could yield per “truth” regarding “style being in the world.” Dr. an interviewee’s give opinion if DiGiacomo further stated that asked mind, regarding defendant’s historical state of he would use a neu- amytal sodium to ascertain whether a traumatic interview going present learn more rosis is or to about what was by evaluating, among other inside the interviewee’s mind response top- things, particular manner of interviewee’s any statements made under the ics as well as substance drug. of a influence of the He concluded that the results interview, conjunction amytal sodium results tests, psychological allow him to other interviews and would regarding psychiatric opinion offer a defendant’s historical acceptability throughout state of mind. Dr. Sadoff stressed profession amytal procedure examination as a sodium patients used to allow psychological blocking overcome traumatic *60 events emotions. He also stated that sodium amytal “face-saving” device, could serve as providing a pretext “permission” effect a for interviewees to talk about topics they that could not openly. otherwise address The witness, Orne, State’s Dr. testified that for purposes, treatment significance the emotional of an interviewee’s recollection is important more than accuracy. historical experts agreed Each of the also that the likelihood of truth- during fulness a amytal greatest sodium interview was when subject experiences abreaction, a state in which the individ- appears past ual experts differed, to relive events. The how- ever, regard reliability to the of an abreaction and the reliability relative of other states outright that fall short of expressed abreaction. Dr. utility DiGiacomo confidence in the interviews, stating of non-abreactive that in the even absence abreaction, psychiatrists gain could still valuable material about subject’s a defense expressed mechanisms. Dr. Sadoff also during belief that results achieved abreaction would be relative- reliable, ly but further during stated that statements made a amytal non-abreactive state while under sodium would still be more than any amytal reliable statements made without sodium subject all. Dr. Orne maintained a that could be untruthful during abreaction, or inaccurate during even and that a state non-abreaction, potential inaccuracy or untruthful- significant ness ego due to increased control. experts agreed
Each of the leading also that the use of questions during amytal problematic. sodium interviews is they agreed rejection topic suggested by While of a leading question generally would indicate irrelevance to a sub- ject’s preoccupations, they problem suggestibil- also cited the ity. leading Dr. DiGiacomo testified that ques- the effect of vary interviewee; tions personality would with the either question effect, suggestive goad will have a or will going opposite way. rebellious interviewee into Dr. Sadoff acknowledged leading ideal, also questions not were but reached, questions then such if is not testified that abreaction along. push carefully trying an interviewee used must be only suggesti- leading invite questions Dr. Orne stated will possibility that an interviewee bility, also foreclose but inquiry. provide paths of spontaneously new B. however, experts fell into two problem, is that these or usefulness of the regard purpose the ultimate
camps with stated that this in this case. Dr. Orne amytal interview sodium solely truth-telling used as a amytal interview was sodium of his state of identify of defendant’s versions which device truth, amytal and that sodium during was the mind the murders however, experts, The other purpose. for this is unreliable *61 though amytal cannot be relied that even sodium each testified matter, significant insights other the truth of a on to ascertain one, in which through interviews such as are attained for determin- can form a basis with other evidence combination ing state of mind. case, previous examinations had conducted
In this Dr. Sadoff Indeed, formulating report final in his of the defendant. mind, Dr. drew on two interviews defendant’s state of Sadoff amytal, background sodium to the one conducted with addition that included witness supplied by defense counsel material Cooke, statements, had con- report by Dr. Gerald who and a defen- psychological tests with of standard ducted number of the defen- in his second interview dant. Dr. Sadoff found amytal, dant, under sodium preceded the examination which much more open ... and “much more that defendant was time, indicated his involvement At that honest.” murders, pertaining to his supplied information but also relationship suggested a between duty in combat Vietnam possibility that defen- of the murders and the the circumstances delayed syndrome. post-Vietnam stress suffered from dant investigate his actions diagnose defendant and whether order to syndrome, resulted from this Dr. Sadoff undertook the sodium amytal interview.
During the amytal sodium examination defendant did not “abreaction,” reliving have an experience of his Vietnam would indicate the syndrome. existence of Vietnam stress Fur- ther, defendant did leading questions not affiliate with intended to draw out a concluded, Vietnam flashback. Dr. Sadoff thus and none of the testifying experts disagreed, other delayed syndrome stress trigger However, did not defendant’s actions. interview, during this provide defendant did information that greatly impressed Dr. Sadoff: leading, asking going
without him what was on at the what turned [my] time, gave out was that he a motivation or a reason that I had never heard before, that wasn’t written down before and that he elaborated under any place upon degree the influence of sodium to a that indicated to me that is he amytal what happening to be what was at the time in his own at the time perceived mind, killing. experts Each of videotape had seen a of defendant’s agreed that no interview abreaction had occurred. Assess- ment of the conduct of this interview focused on the extent to which defendant responses, retained conscious control over his leading questions. and the effect of hearing, At the Dr. Rule vigorously regard Sadoff was cross-examined with to his use of leading questions. prosecutor challenged choice leading questions as investigate indicative of a failure to certain possibilities, including other motives consistent defen- prior killing revenge dant’s non-payment stories of Moreover, debts. cross-examination revealed that defendant spontaneously brought up Reynolds’ attempt the issue of *62 prostitute, contradictory turn Elizardo into a in and did so a way by following “nah, thought his initial with the statement that,” way. no prompting Women don’t need Dr. Sadoff’s follow-up “pimping” that introduced the word and related this argument Reynolds. term to the between defendant and Fur- ther, possessed Dr. conceded that Sadoff defendant some mea- interview, during portion sure of self-control the latter segment yielded but felt that this of the interview nevertheless results. valuable that, of
Dr. the interview DiGiacomo was view was well done, apparent ego but conceded that defendant’s control dur- ing problematic. the second half of the interview was How- ever, interpreted Dr. DiGiacomo the altered nature of the partially second half of the interview as function “shutting topic Stacy after the Elizardo intro- down” duced, represented and stated that this a form of defense that experienced in inclined that defendant had itself him believe rage a loss of control or state of when he killed his victim. In contrast, amytal opined Dr. Orne that the did not interview interview,” quality meaningful amytal of a “even have and self-consciousness, referred to numerous indicies of defendant’s ego control He and awareness his environment. also testi- leading questions compro- fied that use of further extensive by raising spectre suggestibility, mised this interview by imposing prevented free and a structure that both flow of ego information and also raised defendant’s level of control through increased interaction Dr. with Sadoff. acknowledged
Dr. Sadoff substantive statements yielded might amytal in an true. He also interview be interview, amytal stated that without the he would not be able give opinion defendant’s state of mind because he about inadequate otherwise had an sense of defendant’s motive. Nevertheless, he feelings about stressed relationship Reynolds emerged and Elizardo in the between blocking way psychological context of and such a as to suggest extremely meaningful to defen- belief was basis, any significant dant. On this the absence of other rage, trigger sufficient to a state of Dr. Sadoff felt that motive examination, amytal conjunction knowledge ac- results, through examinations, quired reports, other and test finding perception “prostitution” justified a that defendant’s “pimping” triggered rage. a state of
657 Obviously, opinion among there was a difference of the experts concerning reliability of the results of the defen- amytal opinion dant’s sodium interview. The difference of implicates determining admissibility standards for of these results.
C.
Reliability
admissibility
is one of the conditions for the test of
expert
requires
of
evidence. This condition
that the
of the
state
methodology in
developed
art or
the field is
to the extent that
yields
sufficiently
the information that it
is
reliable. State v.
178,
(1984);
Kimmelman,
Kelly, 97
208
v.
96
N.J.
Romano
(1984). Reliability
through expert
66
can
N.J.
be established
testimony
general acceptance
knowledge
about
scientific
given
through acceptance
in the
field of science and
of such
knowledge
publications
reflected in authoritative scientific
Cavallo,
(1982). A
writings.
other
v.
88
508
third
State
N.J.
evidence,
way
establishing
expert
reliability
of
a sense
others,
by judicial opinions that
a derivative of the
have
Windmere,
recognized
reliability.
its
Inc. v. International
Co.,
373,
(1987).
Ins.
105 N.J.
377-79
case, expert
testimony presented
at trial confirms
scientifically-accepted
properly
conducted
use of the results
amytal
reliability
sodium
The issue of the
examinations.
methodology
admissibility
amytal
of sodium
has been the sub-
litigation,
ject
particularly
in California. As the
considerable
out,
admissibility
majority points
jurisdictions reject
other
literally only
purposes
of such information when offered
establishing
Although
the truth of the matter. Ante at 630.
agree
emanating
courts
that statements
from a
California
se,
amytal
per
are not
for truth
it is
sodium
test
reliable
expert opinions relying
amytal
clear
on sodium
results are
provides
body
admissible. This
of case law
no exhaustive
admissibility,
exegesis
principles underlying
such
but
most instructive.
examination of these cases is nonetheless
Jones,
People v.
52 Cal. 2d
In the seminal case of
*64
926,
(1959),
den.,
80
California,
v.
361 U.S.
P.2d 577
cert.
Jones
(1960),
364,
a defendant accused of murder
4
350
L.Ed.2d
S.Ct.
repeat
of innocence while under the
offered to
his assertions
Supreme
Court
of “truth serum.”
California
influence
amytal test “are
that the results of a sodium
unequivocally held
against
the defendant
to
admissible for
not such as
be
certainty
the results.” Id.
of a lack of scientific
about
because
653-654,
principle
at 588. This
has not
at
343 P.2d
52 Cal.2d
Johnson,
See,
Cal.App.3d
32
e.g., People v.
been overruled.
Nevertheless,
988,
(1973).
expert opinion
Cal.Rptr. 118
109
part
amytal
sodium
interviews has
testimony derived
from
In
and admissible
evidence.
determined
be reliable
been
Milner,
People
45
3d
capital-murder
recent
case of
v.
Cal.
227,
669,
(1988),
Cal.Rptr.
246
713
the California
753 P.2d
opin
challenge
expert
the admission of
Supreme Court did not
during
testimony that relied on the defendant’s statements
ion
amytal
for the conclusion that at
a sodium
interview as a basis
murder,
panic
defendant suffered from an acute
the time of the
reaction,
anxiety
and
further unable to form
and
674,
235,
Cal.Rptr.
specific
at
Information derived from sodium person’s capacity expert assessment of a contributes toward Nevil, culpability In re 39 particular to formulate a state. (1985) (forensic 1332, 729, Cal.Rptr. 217 841 704 P.2d Cal.3d amytal conjunction with other tech psychiatrist used sodium personality “mixed disorder” contribut niques to conclude that kill). intend to inability incapacity handle stress and ed to allowed to the fact-finder testimony Such has also been enable killing inability to assess a defendant’s to remember whether repression. People Hogan, 31 resulted from trauma or v. 93, (1982). 815, Cal.Rptr. This infor 647 P.2d 183 817 Cal.3d guilt, probative of the ultimate mation was also used as issue inability expert that defendant’s to recall the as the testified amytal indicated a under the influence of sodium incident while
659
repression
833-34,
consequent
lack of
innocence.
at
Id.
647
103,
Cal.Rptr.
expert testimony
P.2d at
183
at 827. Such
has
mind,
also been admitted for assessment of a historical state of
videotape
transcripts
amytal
of the sodium
interview
additionally
People
Theriot,
admitted into evidence.
v.
252
222,
(1967).
Cal.App.2d
Cal.Rptr.
60
279
admitting
opinion testimony,
such
the California courts are
misapprehension regarding
potential ability
not under some
amytal
of sodium
to lie
under
interviewees
while
the influence
833,
drug.
supra,
103,
Hogan,
In our Rules of in Evidence invite reasonable enabling expert express opinion. an the of his basis Evi- 56(2) dence Rule states that: knowledge, A witness to Rule 19 as an qualified pursuant expert by skill, training or education in the form of or
experience, may testify opinions requiring as to matters technical or other scientific, otherwise specialized 660 knowledge assist the trier of fact to understand if such will testimony The facts or data in the case or determine a fact issue. particular evidence inference those an bases an be may perceived by which expert opinion upon hearing. him at or If of a relied or made known to before type reasonably forming field in or inferences in the opinions upon by experts particular upon subject, the facts or data need not be admissible in evidence. of the rule was intended to “allow more
This formulation
expert opinion testimony”
latitude in the admission of
without
Biunno,
being
“spirit”
of the old rule.
inconsistent with
See
56(2).
Evidence,
Rules of
Comment 7 to Evid.R.
Current N.J.
expert opinion may
clear
on
The rule makes it
be based
upon by
expert
necessarily
is not
admis-
“data relied
which
type
normally
of data
relied
sible in evidence but which is
forming opinions
subject.”
on the
upon by experts in
same
comparison
with
The relative breadth of this standard
Ibid.
prior
expert opinions
limitation of
to those that the trial
facts,
or other
primarily
found to be “based
data
court
the trial” demon-
expert opinion established
evidence at
underlying assumptions that the
a marked shift in the
strates
admissibility problem
bring to
on the
Court should
bear
attitude,
Reflecting
change in
presented in this case.
weight
to accord some
and deference to
courts are admonished
professional integrity
expert
whose
experience
offered,
respect
psychiatric
opinion being
particularly
necessarily is derived from the examination and
opinion that
D.R.,
See,
patients.
e.g.,
statements of
State v.
N.J.
(1986).
(1988);
Co.,
DuPont
661 involving pert’s opinion. judicial precedent psychiatric Our own opinion testimony acceptability has endorsed the scientific knowledge acquired through comparable techniques and its reliability evidentiary purposes. for
D. important ruling It to note that that Dr. Sadoff’s inadmissible, proffered opinion evidence was the trial court squarely predicated apparent unreliability exclusion the particular general unreliability this examination as well as the amytal procedures. clearly It of sodium erred to the extent it by perception general allowed itself to be influenced of the unreliability testing, appearing to of such have been influenced Sinnott, State v. N.J. application uncritical (1957), Here, however, to case.2 the facts all of the experts expressed the view such examinations and the generally accepted examinations results of those were within community particular psychiatric the scientific kinds of evaluations. amytal
The trial court’s evaluation of this sodium
test was
assumption
purpose
only
rooted
that the sole
result
gather
of this examination
statements intended to stand
court, however,
for the truth of the matter asserted. The trial
clearly
experience
misperceived
Dr.
undervalued
Sadoff's
conducting
purpose
amytal
of Dr.
exami-
both
Sadoff
Sinnott,
Levitt,
(1961),
2In
and in the successor case of State v.
nation and his use of other sources of information expert opinion concerning defendant’s state of mind. Although purpose as an Dr. Orne described Dr. Sadoff’s attempt veracity competing versions of to ascertain motive, ascription accepted by an both the trial majority, actually Dr. used sodium court and now the Sadoff amytal diagnostic determining tool in whether defendant’s as delayed syndrome, although actions arose from Vietnam stress possibility might open he also to the that defendant further disclose his motives or state of mind at the time of the crime.3 Further, opinion analysis Dr. was based on of other Sadoff’s amytal in addition to the sodium inter- sources of information Finally, expert testimony indicated adduced at view.4 hearing, the comments elicited from an the Rule 8 substantive on; only an interviewee are not the resources drawn interview- manner, particular topics style, inability respond ee’s among psychiatrist that a can on in are the useful clues draw coming opinion condition or state to an about interviewee’s hearing,
3At the Rule Dr. Sadoff testified as follows: 8 understanding why as to he killed Paul because he wasn’t able I had no altercation, say they got but he didn’t about to tell me. He said into an very have stimulated in what. It was never clear to me about what would man, rage given Darryl sufficient to kill this and the reasons seem Pitts type rage. superficial me and were not sufficient for that ******** syndrome, opinion about the Viet Nam stress and I had no other I had an killed, understanding why people as to these two were and I said if we do amythal can Nam stress [sic] the sodium we either confirm Viet syndrome maybe something emerge. out idea or else will And what came story was this that I had not had before which seemed to me to be type rage necessary that would be for homicide consistent with under those circumstances. 4During hearing, explicitly the Rule Dr. Sadoff stated that the “sodium just amytal, everything. amytal report based on sodium it’s based on I is not just just amytal, any reports on sodium it’s based on all the [sic] don't base Here, I have." the extent of such additional sources other information that Supra at was substantial. 654. *68 conclusions, psychiatrists take this coming to their of mind.5 In sources, including other addi- conjunction in with information tests, apply analytic expertise their and interviews tional Thus, by testimony as indicated range of materials. the entire in amytal hearing, sodium interviews at the Rule 8 elicited yield that is useful particular, in can data general, and this one independent the literal truthfulness of what ways entirely of in actually says. It is thus clear that Dr. Sadoff the interviewee basing incrementally, it on defendant’s judgment his reached information conjunction in with other analyzed statements of informa- amytal examination and sources from the derived independent of the examination.6 entirely tion expert independent value of this inability recognize analysis is the trial interpretation and shown process of testimony. Because Dr. analysis for” Sadoff’s court’s “but amytal ordering the sodium prior that Dr. Sadoff testified and other his access to defendant he did not feel that interview to arrive at an gave enough him information results test mind, trial court determined opinion on defendant’s state to the testimony was flawed due proffered that Dr. Sadoff’s analysis This amytal evidence. character of the “but for” hearing: Rule 8 Sadoff testified at the 5As Dr. reliability [M]y interpretation [of defendant] of that test of the test and the time, my interpretation is that it came conditions at that under those something blocking it’s period that indicates that or resistance after a suppressed or dredged up and had been happened from the bottom meaningful repressed to him. and was there court, moreover, justified placing such dominant was not in 6The trial testimony concerning of this examina- the usefulness Orne’s reliance on Dr. psychiatrist tion; although clearly credentials as a his reflects the record amytal experienced use of sodium impeccable, in the he was much less were the course of testified that over DiGiacomo. Dr. Sadoff Drs. Sadoff and than interviews; amytal Dr. about 150 sodium had administered his career he 4,000. Orne, approximately Dr. that he had administered DiGiacomo stated however, appears "maybe from Dr. Orne's 20”. It conducted claimed to have analogy expert opinion to his primary testimony bases for that one of the hypnosis. expertise in the use of implies amytal interview is the sole source of Dr. opinion, s in parroting Sadoff and that he is effect defendant’s statement. however, analysis,
Such undervalues both the role of Dr. expertise information, and his use Sadoff’s of other sources of meaning statement, to the literal addition arriving expert opinion. judgment at his Dr. Sadoff made his analyzed conjunction on defendant’s statement as based amytal other information derived from the interview and entirely independent sources information of the interview. postulate It is therefore incorrect to unwilling- that Dr. Sadoff’s expert opinion amytal ness to state an without the sodium data *69 making judgment the same as is on the sole basis amytal principle sodium interview. This latter exem- would be plified by expert proffers a situation in an opinion which on only guilt based a defendant’s statement of or innocence given amytal. while under the influence of sodium It is this usage amytal, kind of of sodium redolent of discredited notions serum,” unacceptable. example, however, of “truth that is This little presented bears resemblance to the situation in defen- dant’s case. acceptance
In analysis its of the trial court’s and determina- issue, neglects tion of this the Court thus to consider the extent knowledge professionally-conducted which derived from amytal accepted purposes diagno- sodium examinations for of acknowledged scientifically sis and treatment and is to be These reliable. considerations conform to our standards for admissibility knowledge by Here, experts of such in the field. argue knowledge defendant does not that the derived from his purpose examination is to be admitted for a that is inconsistent accepted practice; with its use in he does contend not that the of inherently through substantive utterance his motive is true Rather, magic amytal. expert sodium wit- knowledge gleaned nesses have stated that the from the exami- probative nation is of defendant’s state mind in the context used; amytal generally they in which sodium interviews are are diagnostic they provide a tremendous a useful device because an interviewee’s subconscious amount information about mind. confirms Dr.
A brief review of relevant evidence Sa- proffered opinion should have been understood doff’s guilt phase, maintained Throughout context. defendant rage. turn, killing committed in a state of that the was argued that the evidence demonstrated that defendant State killing, indicating defen- monetary motive for the had a fully It under- premeditated. dant’s actions were is therefore clarify amytal resorted to sodium standable that Dr. Sadoff He probable state of mind. was and determine defendant’s might primarily interested in abreact whether experiences; positive affiliate his Vietnam otherwise syndrome increased the diagnosis delayed stress would have provided post-Vietnam delayed syndrome stress likelihood that insight into his state of reason or for his actions and motive any way enlarge failure to Viet- mind. Defendant’s highly signif- during amytal was experiences nam interview the role of a Dr. used this result to rule out icant. Sadoff this made it flashback, and Dr. Orne stated that Vietnam even syndrome delayed stress likely” “more than not that Vietnam triggering defendant’s actions. responsible syndrome exemplifies delayed stress This elimination amytal, diagnostic use of sodium but legitimate professional *70 syndrome left unanswered delayed elimination of stress mind; premeditation and a state of question of defendant’s rage of explain type the frenzied monetary could not motive shown, rage was killings. already this accompanied the As that derived anger jealousy, a conclusion to sexual and attributable sources, including important- incrementally of from number — amytal exclusively necessarily, ly perhaps and but —the conclude, to as did unfair and inaccurate examination. It is court, opinion that the defen- that Dr. Sadoff was trial engaged prostitu- Stacey the belief that was dant acted with during the sodium the defendant said simply tion because Rather, amytal light interview. it seems in of the entire record opinion that Dr. Sadoff’s that rage defendant acted in a involv- ing jealousy sexual was based on the fact that monetary insubstantial, motive was delayed that evidence of stress was equivocal, continuing strong defendant had feelings sexual Stacey, for and ineffectively attempted that he deny feelings to jealousy explanation prostitution of and used the of as an Thus, excuse or reason anger. significant for his what was Dr. Stacey Sadoff was not defendant’s engaged belief prostitution truly this, whether defendant believed but rather the rage fact of defendant’s feelings actuated of sexual attraction jealousy.
Moreover, reliability probative worth of this informa- indirectly tion was corroborated. Dr. Cooke concluded that significant potential defendant had rage or “loss of control” cyclothymic due to a personality physi- disorder. He relied on crime, cal evidence at the scene of the defendant’s statements him, and the results diagnostic tests. Ante at 608-609. Dr. Sadoff eyewitness reports, also relied on amytal non-sodium examinations, and the testing; results of Dr. Cooke’s he also amytal used the sodium examination. rejection The court’s Dr. Sadoff’s evaluation of defendant’s state of mind seems hypertechnical light acceptance of its of Dr. Cooke’s evalua- tion, particularly inasmuch provided as Dr. Sadoff was with and used Dr. reports results, Cooke’s and test and even went one step by turning further amytal to sodium as an additional diagnostic tool.
The result reached easily the Court cannot be reconciled approach with our Hurd, and decision in State v. in which Dr. coincidentally Orne proponent testified as the hypnotically-in- duced statements expressed of a witness. opinion He hypnosis reasonably would often reviving be reliable in normal recall in cases of traumatic acknowledged neurosis. He also that the likelihood accuracy hypnosis diminished when used to “refresh a memory concerning witness’ details when may all, there be no ‘verify’ recollection at one several
667 conflicting given witness,” by accounts or when a witness had “a remembering discernible motivation for not ‘recalling’ or for particular Hurd, supra, version of the events.” N.J. testimony parallels many 544. This points made Dr. hearing Orne in the Rule 8 regarding defendant’s sodium amytal Further, examination. explicitly equated Dr. Orne the hypnosis effects of with those of amytal; sodium he even point stated “[a]mytal any at one hypnosis more than going you Nonetheless, to tell answer what is true.” we ruled in similarly Hurd that an utterance through derived hypnosis, an narcoanalysis, alternative form of present- can be ed to the for credibility. evaluation of sum, there require was sufficient basis in the record to expert trial court to admit testimony relating to the results of sodium-amytal examination of the defendant. While evalu- probative ation and testimony might worth of that be the subject opinion, of differences of such differences did not impugn admissibility of evidence that should have been presented for jury’s consideration and assessment of the weight and applies credit to be accorded to it. This as well to the asserted specific amytal deficiencies in the examination hearing, identified in the leading Rule 8 such as the use questions significance, and the any, if of the fact that defen- apparently dant experience during did not an abreaction interview. Each of these considerations would bear on the credibility of the defendant reliability any and the assertion of truth within the interview. presentation subject of such evidence to full cross-exami- rebuttal,
nation along general jury charge with a concern- ing jury’s responsibility determining credibility overall application expert and the assessment and testimony, and a specific charge concerning possible unreliability of facts expert learned subject testifying from a under the amytal, influence of sodium properly would serve need to probativeness against prejudice. balance These considerations *72 admissibility expert’s opinion during strongly dictate the the guilt phase of this case. the
E. testimony highly preju- was The exclusion of Dr. Sadoff’s noted, of mind at the time of the dicial. As defendant’s state major jury that confronted the in deter- murders was a issue Accordingly, mining guilt. defendant’s each side devoted sub- underlying attention to the issue of defendant’s motive. stantial premeditation prosecutor The stressed the theme of and the monetary expressed by defendant sever- motive which had been times, particularly during early stages investiga- of the al the turn, presented tion. In defense the theme of defendant’s the jealousy. sexual ability present jury the this case to the defense was however,
compromised, killing the different accounts gave investigation that defendant over course of interview, During police the initial defendant claimed trial. mysterious party. During killer third that the was a subse- interview, quent killing and cited an defendant confessed to motive; defendant adhered to this line overdue debt as his also during parole an interview with a officer. his initial inter- Cooke, Dr. defendant introduced the theme of the view with Finally, from the time of the sodium Vietnam flashback. interview, amytal defendant introduced elements of the theme theme, however, jealousy. presented of sexual This was never manner, complete during in a coherent or even defendant’s own testimony at trial.
This theme clearer and coherent if would have become much testify concerning opinion Dr. Sadoff had been allowed to part defendant’s state of mind based the results amytal opinion significant sodium examination. This only probative plausible for its worth version of what was going killing; on inside defendant’s head at the time addition, expert testimony provided Dr. Sadoff’s would have presentation of conflict- insight into the reasons example of a situation ing presents This case a classic stories. knowledge expert of an acute need for the there is an which Kelly, v. See State truth. jury in its search for the to assist a supra, N.J. 178. presented of evidence
Chronological examination testimony guide as a for the potential of this at trial shows First, preoccupation emotional theme of intense jury. during defendant’s second state- life surfaces Elizardo’s sexual time a curious police; his statements at that reflect ment to the pain.7 mixture of bravado and *73 Cooke, Dr. defendant During subsequent interview with prior to the of the incident at Elizardo’s house gave an account theme, including feelings of killing this same that sounded being and misused.8 insulted exchange occurred:
7This [Stacy]? you Q intimate with ever been [H]ave
A Have I? Q Yes. A Yeah. many you Q on how occasions? Do recall guess gets I much as she wants and Not that often because she laid as A get get to laid to laid that much or she wants it’s her —she didn’t need know, really. person wants to. I don’t she 23rd, Well, you apartment, on the 22nd Q now it's the when went to any jealously yesterday, you was of the fact that she did have which was man? with another that because I’vebeen over there I became accustomed to A No. Because running times, figure go many there. I she was men come and out of so fucking whorehouse. 8Dr. Cooke testified: really days the offense itself. And on starts two before
What he told me [actually, Stacy’s] day at Paul’s a situation in which he was that there was house, there, having helped preceived Stacy and he himself as [sic] was get Stacy by helping Della someone [Vincent Paul and situation that apartment they not want there. out of the that did Polla] psychological point important thing I felt from a of view So the that feeling helped Stacy he had that he indicated a that about that incident was major next Defendant’s statement was made to Dr. Sadoff however, during amytal jury, the sodium examination. explicit illuminating never heard defendant’s first and state- perception Elizardo-Reynolds relationship ment of his explanation meaning of Dr. Sadoff’s of that statement psyche. context of within the trial, Shortly again defendant, before Dri Cooke interviewed “prostitution.” who characterized Elizardo's sexual acts as Ac- Cooke, cording Dr. appeared to be a rationale strong feelings jealousy, to mask his feelings perceived which he as an indication weakness.9 Paul, important feeling which and it ties in because with his and the personality dynamics. where he had talk dumping he had served his insulting didn’t he is not He also indicated about want very good him____ him, it, to come out but that helped so he was purpose ... [********] he felt that because of the incident two he felt at that getting and talk to that Paul upset for them these about that. was feelings him, point belittling Paul was they he was out were him, arguing being you just using mocking have used, days him, him and him and pull before Stacy and 9Dr.-Cooke testified that: implied, say many [Defendant] indicated that Paul did in so so words, implied Stacy engaging but sexual relations order to *74 said, get drugs “prostitution.” and he he term used the said that that He recognized possibility. was the first he had heard or that questioned specifically why police I him he about told the that he went to apartment money why up because he and owed also he came with figure specific [Reynolds] [such] $700.00. as He indicated to me that did was, money, figure something not owe him that the $700.00 had to do with pay what told him to his wife she needed some bills he told and that One, police for two that reasons. that he did not want to seem involved other, this, drugs, emerge and as we over to went this seemed ” reason, term, primary cripple. he used the “emotional did not He want police somebody to think him as who couldn't control and himself but, people problems, rather, give killed two because emotional wanted to explanation way, explanation them an that didn’t that label himself they money. he went there because owed him [Emphasis added.] trial, on the theme Finally, defendant elaborated consequent Reynolds. for and dislike for Elizardo affection coherent; However, it is clear that presentation was never this highly still feelings toward Elizardo were own example, amytal in his sodium charged unresolved. For and Reynolds examination, his belief that was defendant articulated exchange money drugs. jury The Elizardo in for pimping indicating that toxicology reports while presented with was positive amphet- drug-free, Elizardo tested Reynolds was Nevertheless, rather methamphetamine. amine and derog- say anything that he considered emphatically refused to Stacy.10 atory about feelings may have been apparent
It is thus that defendant’s confused, feelings may expression of these mixed or and his ambivalence, it is nonetheless but often have exhibited a bizarre intense, enough so very perhaps feelings these were clear that rage that was at issue. trigger the state of to expert However, by being access to Dr. Sadoff’s denied crucial first statements knowledge of defendant’s testimony or relationship, Elizardo-Reynolds perception of the regarding his help explain that could jury deprived of evidence was of defen- unify disparate elements inconsistencies and these blocking repression, phenomena dant’s stories. approacha- experts as surmountable recognized all of amytal and further through professional use of sodium ble context of DiGiacomo the on Drs. Sadoff and elaborated exchange during following of defendant: cross-examination 10The occurred thing jury you you her Q to tell this killed And believe it's the macho her, Reynolds pimping prostituting was she was herself and that because jury you want this to believe? that what thought jury that I didn't have the intentional A I want the to believe people. harm these believe, sir, only you really My question, Q do want her, Reynolds pimping you you Paul her but killed her because killed you juty prostitute, what want this to believe? as a is that Stacy. anything like that about want them to believe A I don’t *75 examination, probative understanding defendant’s were of an of multiple defendant’s of accounts his motivation and of state mind and on of credibility. credibility issues Defendant’s could only profit expert opinion from revelation of an that could serve actions, explain during both and after kill- ings, light problems. Further, in his psychological of had the timing been alerted to the of amytal the sodium examina- tion statements, relative to defendant’s other presentation jealousy of rage sexual as defendant’s motive would have been much more coherent. potential
This context for expert role of Dr. Sadoff’s testimony thus probative demonstrates the substantial worth sought evidence that he deprivation to offer. The to the by defense the erroneous grave- exclusion of this evidence was ly prejudicial clearly requires reversal of defendant’s mur- der convictions.
III. proffered opinion testimony Dr. Sadoff’s unquestiona- should bly during been penalty phase. have admitted This conclu- compelled sion only by purpose the ultimate phase penalty spirit and the capital-pun- that animates both our statutory ishment Davis, scheme and our decision v. State (1984), special N.J. 611 but probative also worth of such testimony determining the ultimate issue in the sentencing trial Daryl Pitts —whether he should live or die. capital-punishment sentencing
Our scheme contemplates that a defendant eligible convicted murder and for a death sentence present will be able argument evidence and com- sought mensurate with the sanction Accordingly, the State. provides the statute admissibility standards of evidence presented by in support mitigating factors that stringent are less applied than those in other proceed- criminal ings. 2C:ll-3c(2)(b). Further, N.J.S.A. defendants face bur- proof den establishing mitigating factors that is less
673
establishing
by demanding
the burden faced
State
than
2C:ll-3c(2)(a).
insist that
We
aggravating factors. N.J.S.A.
issue,
must determine
death to
the fact-finder
for a sentence of
any aggravating factors found
beyond a reasonable
doubt
Biegenwald,
outweigh any mitigating factors.
v.
to exist
State
13,
(1987).
give
intended to
53
This structure is
106 N.J.
argue
for their lives.
opportunity
the fullest
defendants
policy
is our determination
fact-find
Consistent with
that would have a
denied access to information
ers not be
mercy
sympathy.
or
mitigating
through the elicitation of
effect
Indeed,
Ramseur,
the Court
supra, 106 N.J.
299.
v.
State
attorneys
prevent
from
does
allow a defendant
not
action would
mitigating
because such
presenting
evidence
potentially
fact
crucial informa
from the trier of
“withhold[]
constitutionality of
for the
important implications
tion” that has
225,
Koedatich, 112
v.
N.J.
penalty
our death
statute. State
den.,
(citation omitted),
Jersey,
v. New
cert.
Koedatich
331-32
—
(1989). Although
U.S. -,
813,
Examination mo- capital-murder our reveals that the defendant’s statute is choosing tive the critical and salient consideration in between imprisonment life or the ultimate sanction of death. This emphasis appropriate punishment on motive as an index of by many aggravating reflected of the statute’s factors. Mur- exchange receipt ders committed in anything for value, pecuniary 2C:ll-3c(4)(d), pur- N.J.S.A. committed confinement, pose escaping detection or NJ.S.A. 2C:11- 3c(4)(f), activities, engaged while in other criminal N.J.S.A. 2C:ll-3c(4)(g), or public because the victim’s status as a *77 servant, 2C:ll-3(c)(4)(h), reprehen- N.J.S.A. are considered so justify sible as to the penalty society particu- death because is larly repulsed by the idea that such can motives lead to murder. Further, our of interpretation aggravating factor N.J.S.A. 2C:ll-3c(4)(c) essentially “depravity” defines as a murder com- Gerald, the 66; mitted with of absence motive. 113 N.J. at Ramseur, supra, 106 at 211. N.J. importance
The throughout of motive is also discernible the range of mitigating 2C:ll-3c(5)(a), (b), (e) factors. N.J.S.A. and consider whether the defendant was under the of influence extreme mental or emotional disturbance insufficient to consti- a prosecution; solicited, tute defense to whether the victim participated in, resulting death; or consented to conduct in whether the defendant was under unusual and substantial prosecution. duress insufficient to constitute a defense to Fur- ther, factor, mitigating c(5)(h), the “catch-all” certainly could any might accommodate motive that demonstrate an ameliora- short, tive In quality. penalty the phase capital of a is a case investigation wide-ranging character, of only a defendant’s Thus, but also of his or her motives. the determination of a murder, defendant’s motive for a determination that lies close guilt phase beneath the of proceeding surface but is never directly murder, addressed anas element of is at the heart of a penalty phase proceeding capital in a case.
The central role in penalty phase significant of motive the has admissibility question posed ramifications in this case. quotation its extensive of our decision in Davis and acknowl- of, 2C:ll-3c(2)(b), cognizant is edgement the Court of N.J.S.A. admissibility endorses, of principle indeed broad mitigating the existence offered to establish evidence however, sticking point, is factors. Ante 619-22. recognizes effectively relaxes although that Davis the Court penalty-phase admissibility, the main- Court standards result, unreliability amytal of a sodium test tains that the truth arguably it could be used to establish because substantia] belief, in enough this is a consideration proffered by Dr. preclude testimony case to admission at 631-34. Sadoff. Ante virtually is undeniable that admis- strenuously disagree.
I
It
goals
policy
only
is not
consistent with
sion of this evidence
language
Davis,
actual
of that
also with the
that underlie
but
trial
“must
Davis,
Court stated that a
court
decision. In
evidence,
part,
if
or
...
whole
retain discretion
exclude
substantially
its unfounded
outweighed
its
is
probative value
confusion
and the risk of
sub-
speculative
character
Here,
Davis,
at 623-24.
since
supra, 96 N.J.
stantial issues.”
the central issue
be
defendant’s motive is
resolution of
applied
to be
penalty phase,
the essential test
decided
speculativeness
probativeness and the
balance between
*78
proffered
the
evidence.
groundlessness
of
3383,
Estelle,
880, 103 Ct.
v.
463 U.S.
S.
The case of Barefoot
(1983),
permissi
for
provides a
the
77
benchmark
L.Ed.2d 1090
psychological evidence
the
speculative expert
limits
ble
of
Supreme
phase
capital
Barefoot,
case.
In
the
penalty
of a
psychiatric testimony concern
upheld
admissibility of
Court
the
pursu
offered
ing
capital
dangerousness
future
a
that
specific provision
death-penalty
Texas
statute
to
ant
aggravating
Al
as an
factor.
dangerousness
treated future
personal
not
conducted a
though
psychiatrists had
even
defendant,
this
the Court stated that
evi
interview with
of
presented
to the
where
benefits
dence should be
contrary evidence
submission of
cross-examination
ability of the
justify trust in the
adver-
party would
opposing
sary process “to sort out the reliable from the unreliable
opinion
dangerousness.”
901,
evidence and
about future
Id. at
excluded. any it harm to defen- dant’s cause was self-inflicted inasmuch as defendant was presented opportunity with the testify have Dr. Sadoff record, already basis of evidence particularly in the defen- dant’s own trial testimony that his Reynolds accusation of pimping precipitated shoving for Elizardo match that escalat- conclusion, ed into the fatal attacks. Ante at 634. This how- ever, fundamentally flawed that such an offer had the effect eviscerating defendant’s evidence. The essence Dr. particular insight *79 Sadoff’s in this arises applica- case from the personally gleaned he expertise of his to information tion course, defendant, including, all of the non-literal of from the testimony. If the defendant miscalcu- support that his sources tactic, of Dr. namely, terms trial the withdrawal lated in of a by the necessitated testimony, such tactical error was Sadoff s issue, difficulty this ruling. The of court’s erroneous trial own discussion, length by the of this Court’s perhaps indicated court’s exclusion of this might explain, justify, if not the trial However, clearly phase. the trial court guilt at the evidence penalty phase; it this exclusion to erred when extended any indeed, “it doesn’t make court’s statement trial is guilt phase” or the penalty phase its the difference whether to those a failure understand disturbing. most It demonstrates aspects peculiar penalty phase to delibera- unique sensitive recognized by our case are statute and tions that established disingenuous compro- is to attribute the light, In this it law. strategic presentation solely to his own of defendant’s mise decisions. trial
Finally, balancing process we must consider delicate proceeding. are engage during capital-penalty Juries juries of duty existence determine the charged only to weight factors, assign quantum of statutory also but relevant every balancing purposes. It follows that shred or her seeking to precious is to a defendant save evidence light balancing requirement, one is confounded life. of this evidence suggestion of the Court that admission by the unnecessary found that because emotional disturbance of extreme mental or under the influence mitigating prosecution, a a defense to insufficient constitute c(5)(a). perplexed by the Court’s One is further factor under of Dr. Sadoff’s acknowledgement that the exclusion cryptic statutory balancing of testimony “may” have affected the begun scholarship legal Recent has at 631. factors. Ante assessing analysis in utility “reliability” on the limited focus weighing sentencing primarily decisions involve capital See, e.g., the determination facts. values rather than *80 678 Berger, Supreme The Court and Counsel: Old Defense
Roads, End?, 9, 443, New Paths —A Dead 86 nn. Colum.L.Rev. (1986); Goodpaster, 470 Adversary System, Advocacy, and Cases, Assistance Counsel in 14 Criminal N .Y .U Effective of 59, (1986); Note, .Rev. L. and Change Social 83-85 Ineffec Capital tive Assistance Counsel at 39 Sentencing, Stan.L. (1987); Oklahoma, 68, 87, 105 Rev. 461 Ake v. 470 U.S. S.Ct. cf. 1087, 1098, C.J., (1985) (Burger, L.Ed.2d 68-69 concur ring) (finality of in capital protections sentence cases warrants may may required cases). or not be in other In a context nature, the quantum where quality subjective and evidence exceedingly critical, it is untenable to believe that additional weight evidence that could increase mitigating the circum “unnecessary” stances is seeking a defendant jury to have a spare his life.
Accordingly, given policy the implicit broad dictates in the explicit law, statute and in our case I agree cannot with the expert Court’s decision to exclude testimony the proffered by Dr. by Sadoff from consideration the jury during penalty phase of policies this case. Because of light these and in of the gravity ultimate of the decision by penalty-phase faced jury, arguments each of may point considerations that to- ward the admission during guilt of evidence phase applies with irresistible penalty phase. force The Court’s deter- is, contrary mination to the my opinion, unjust. untenable and
IV. conclusion, In the defendant’s murder convictions must be right reversed. He was denied the to have the consider in light charge evidence of a non-capital based ordinary murder, clearly mandated our Gerald decision. was, moreover,
The defendant critically prejudiced by exclusion expert opinion of Dr. concerning Sadoff defen- motive, dant’s state mind and opinion which was derived scientifically acceptable procedure from a widely used within with community undertaken accordance scientific qualified expert. eminently professional standards applicable penal- standards admittedly different light of the from con- of this evidence admissibility, the exclusion ty-phase The error of sentencing jury is indefensible. by the sideration realization even less defensible exclusion becomes opinion, as well underlying proffered aspects of the facts *81 all complete conclusions, cross-ex- subject be would as ultimate rebuttal, jury’s ability to serving to enhance the and amination credibility. and assess evidence evaluate warrants reversal exclusion of this evidence prejudicial convictions, imposition impugns murder of defendant’s duplicated not be sentence, assuredly should the death resentencing trial. any
Accordingly, I dissent. part Justice part reversal in —Chief
For affirmance POLLOCK, STEIN, CLIFFORD, and Justices WILENTZ O'HERN, and GARIBALDI—6.
Dissenting HANDLER—1. —Justice PLAINTIFF-APPELLANT, JERSEY, MARC v. OF NEW STATE YOSKOWITZ, DEFENDANT-RESPONDENT. 19, July Argued January 1989. 1989 Decided